The article was based on a truly dodgy piece of research commissioned by Garth McVicar and carried out by Kiwiblogger, David Farrar. Even Donald Trump would have called it ‘fake news’.
To get this result, those participating in the survey were asked this question:
“Since 2010, New Zealand has had a ‘Three Strikes’ sentencing law for serious violent and sexual offenders who continue to commit offences. This law removes parole eligibility for repeat offenders and imposes the maximum prison term available for the offence committed, for those who offend a third or subsequent time. Do you approve or disapprove of this law?”
David Farrar’s research firm rang up 965 people and 645 of them (68%) said they approved. When contacted about these results David Farrar said his team actually rang about 2000 people, but only 965 agreed to participate. So actually that’s 645 out of 2000 people who said they approved of the law. That brings the approval rate down to 32%.
Even then, the result is still misleading. In surveys like this, when people are given specific details about the offender and the crime and understand the context, they tend to be far more lenient towards the offender than when asked vague questions like the one above.
To illustrate: there are only two or three offenders on their third strike. One of them is Daniel Fitzgerald who has a history of mental illness. In December 2016, under the influence of alcohol, he approached a woman he did not know in central Wellington. He tried to kiss her on the lips, but in the struggle she managed to turn her head away and he kissed her cheek instead.
Because this was his third strike, he was sentenced to the maximum sentence of seven years’ in prison for indecent assault. The judge in the case said the offending was so minor that without the three strikes law, Fitzgerald would not have been sent to prison at all.
Raven Casey Campbell is another on his third strike. He was already in prison when he was convicted of indecent assault for grabbing a female prison officer’s bottom. On top of the sentence he was already serving, he was also sentenced to an additional seven years. Judge Toogood said:
“It may seem very surprising that this consequence could be required by law for an offence of this kind, but that is the law and I have no option but to enforce it.”
Context-rich research questions
In order to conduct more meaningful research on the extent to which people approve of the three strikes law, survey questions need to be formulated like this:
“A 45-year-old man with a history of mental illness kissed a woman he had never met on the cheek when he had been drinking. If you were the judge, would you sentence him to a community-based program with a focus on addressing his mental health and addiction issues, or would you sentence him to prison.”
The evidence suggests that when people participating in surveys are given background details about the case, they tend to be far more lenient than when asked general questions that don’t provide any context.
In a brief survey conducted by Survey Monkey, even when someone has been killed in a drink-driving accident, 97% of respondents did not want the offender to go to prison when told the background circumstances. CHECK OUT THE SURVEY HERE.
In March 2018, Garth McVicar congratulated the police on his Facebook page for shooting a 29-year-old man near Pohuehue. “One less to clog the prisons!” he wrote.
McVicar was criticised by all and sundry including the police who called his comments repugnant. Action Station urged readers to sign a petition suggesting ‘Sensible Sentencing Trust should not have charitable status’.
The reality is that the SST does not have charitable status. It was deregistered in 2010 when the Charities Commission decided it was a lobby group and that its main aims were political rather than charitable. The point was clarified in a press release issued by Charities Services in 2015:
The Sensible Sentencing Trust was created to advocate for changes in the law about sentencing and criminal (penal) policy. It is not a registered charity.
According to Sir Peter Gluckman, Garth McVicar uses dogma, rather than data to make his case in the media. It seems he also uses ‘alternative facts’ (to quote Kellyanne Conway). On the SST website, McVicar still claims the SST is a ‘registered charitable trust’ (see screengrab below).
This is illegal under the Charities Act. Section 37 of the Act states that unless registered under the Act, “a person may not use the words ‘registered charitable entity’ to describe their organisation”. Section 38 says that anyone who does so commits an offence and is liable to be fined up to $30,000. That means McVicar is potentially in breach of section 37 of the Charities Act and could be fined up to $30,000.SGRITY SET UP
In order to get around the deregistration, in 2015 McVicar set up a second trust called the Sensible Sentencing Group Trust. The website claims:
“Sensible Sentencing encompasses two very distinct trusts and purposes” – yeah right!
McVicar claims that the role of the SST is political advocacy (which is not a charitable purpose) and the role of the SSGT is solely to support victims – which is considered charitable. The screengrab claims both of them are ‘registered charitable trusts’.
However, Garth McVicar is the spokesperson for both organisations: the roles and functions of the two trusts are enmeshed on one website; funds for the SSGT are solicited on the SST site; the few staff who offer victim assistance on behalf of the SSGT are all members of the SST; and the SSGT Trust document (available on line) in effect describes political advocacy in its mission statement. It says:
“We serve to educate the public as to the plight of these victims… and to help them ensure their interests are properly understood by any relevant authority.”
‘Educating the public’ (through McVicar’s frequent media statements) and ‘ensuring that victims’ interests are understood by the relevant authorities’ is McVicar’s modus operandi. He is constantly calling on the Government of the day to lock up more people. According to Charities Services, as a registered charity, the SSGT is not allowed to do this.
In other words, the SSGT is just a front enabling the organisation to continue offering donee status with the IRD while McVicar continues with his media campaign and political agenda under the guise of the SST. Political advocacy is not a charitable purpose. So in the words of the Charities Service, both the SST and SSGT appear to be “sham charities set up for an illegal or improper purpose”.
The SSGT should also be deregistered. Now that would be really sensible.
Since the Bail Amendment Act was passed in 2013, the prison population has jumped by over 1500. This has created a crisis in capacity – there are only 300 beds left in the entire prison system. The National Government and Bill a new 3,000 bed prison at Waikeria to address the problem – at a cost of $1 billion.
But to get to 50%, we also need to stop putting so many people in prison in the first place. And we need to reduce the re-offending rate.
Unlike the quick fixes, some long-term solutions will require financial investment. Others, such as raising the price of alcohol will actually increase government revenues.
Increase the price of alcohol and decriminalise cannabis
Despite the endless scaremongering about methamphetamine and synthetic cannabinoids, alcohol is by far the biggest drug problem in the country. In Alcohol in our Lives, the Law Commission said 80% of all offending is alcohol and drug related. The Commission concluded that increasing the price of alcohol 10% (by raising the taxation component) was the single most effective intervention to reduce alcohol related harm and would raise $350 million in revenue.
It also recommended an increase in the legal age of purchase to 20, restricting the sale of alcohol in supermarkets (which now account for 70% of all alcohol sold in New Zealand), and an increase in funding for addiction and mental health treatment. The National Government ignored all these recommendations.
Decriminalising cannabis would also help keep drug users out of prison. If the Government wanted to be really bold, it could decriminalise possession of all drugs as Portugal has done. In July this year, the New Zealand Drug Foundation released a similar policy, Whakawatea Te Huarahi. The Foundation describes this as:
“a model for drug law reform which aims to replace conviction with treatment and prohibition with regulation… under this model, all drugs would be decriminalised. Cannabis would be strictly regulated and government spending on education and treatment increased.”
This would make a big difference. In 2015, offenders with drug offences accounted for 13% of all sentenced prisoners. So apart from a few big time drug dealers who would remain in prison, if personal possession was decriminalised, that’s another 800 people or so that could be treated in the community instead of in prison.
Increase the number of drug courts
Decriminalisation needs to be aligned with a significant increase in funding for ‘drug courts’. Here’s how they work. When someone appears in court with alcohol or drug related offending, the judge gives him a choice. Instead of sending him to prison for the umpteenth time, if the offender agrees to be dealt with in the drug court and go to treatment, he may avoid going to prison.
The offender comes back to court every two weeks so the judge can monitor his progress. The whole process usually takes about 18 months. If the offender successfully completes everything he’s told to do, he avoids a prison sentence. Those who ‘graduate’ say this process is much tougher than going to prison.
This is a highly effective intervention. But right now, there are only two drug courts in the whole country, and they ‘treat’ only 100 offenders a year. Over the next five years, New Zealand needs to increase the number of Drug Courts to at least ten. Justice Minister, Andrew Little, has already agreed to ‘roll them out’. This will require a significant increase in funding for AOD treatment services in the community, but it would keep at least 500 offenders a year out of prison. If drug courts were rolled out nationwide, even more could be managed in the community.
Increase funding for reintegration services
Sending less people to prison is paramount. Reducing the risk of reoffending is equally important. Currently, within twelve months, 28% of ex-prisoners are back inside. After two years, 41% are back in prison. These figures have changed little in the last 20 years, despite a massive increase in the availability of alcohol and drug treatment in prison; and despite a concerted effort by Corrections in the last few years to reduce reoffending by 25%.
The problem is Corrections spends approximately $150 million a year on rehabilitation programmes in prison – on programmes that don’t work. There’s a reason they don’t work. The reality is that 15,000 people (most on short sentences) are released from prison every year. Many are alienated from family and have nowhere to live. Very few have jobs to go to. Hundreds have no ID, no bank account and struggle to register for the dole. In Beyond the Prison Gate, the Salvation Army recommended…
“that the Department of Corrections ensures all ex-prisoners are provided with six months of accommodation… and create industry schemes that will employ prisoners for … 12 months post release if they have no other employment.”
Here’s the crux of the problem. While the Department spends $150 million on rehabilitation in prison every year, in 2017 only $3 million was budgeted for supported accommodation – for an estimated 640 ex-prisoners. Until $150 million is also spent on half-way houses and reintegration services, the funding spent on rehabilitation in prison is money down the toilet.
There are many other options available. But until we have a Government with the courage to ignore the moral panic perpetuated by the Senseless Sentencing Trust over the last 20 years, our prison muster will continue to multiply; and millions of taxpayer dollars will be squandered on the dubious delusion that locking citizens away creates a safer society.
Whatever the causes, the situation is clearly out of control. The operating cost of our prison system is about $100,000 per prisoner or $1.5 billion a year. The National Government was planning a new prison at an estimated cost of $2.5 billion. According to the new Justice Minister, Andrew Little, unless we start doing things differently, New Zealand will need to build a new prison every two or three years.
At the 2017 election, Gareth Morgan proposed reducing the prison muster by 40% over ten years. The Labour coalition wants to reduce it by 30% over 15 years. However, both Kelvin Davis, the new Corrections Minister and Andrew Little have been very vague about how they intend to achieve this. Both also seemed to think it was complicated and would take a long time.
Reducing the prison population is not difficult. The simplest approach is to repeal most of the ‘tough on crime’ legislation that has been passed in the last 25 years. There are also some easy administrative fixes which will reduce the prison population by up to 3,000 very quickly. This article describes some of the quick fix solutions. (Also see Roger Brooking interviewed by Hilary Barry on Breakfast on this subject.)
Reduce the number of prisoners on remand
Of all the punitive legislation passed since 1980, the Bail Amendment Act in 2013 produced the biggest bump in prison numbers. This disastrous piece of legislation was introduced after the murder of Christie Marceau by 18-year-old Akshay Chand – while on bail. However, this was not a failure of the existing bail laws. It was the result of an inadequate risk assessment by the mental health services dealing with Chand, who was subsequently diagnosed with schizophrenia and found unfit to stand trial. He was released after a forensic health nurse advised Judge McNaughton that Chand had been taking anti-depressant medication for two weeks and could be “safely and successfully” treated in the community.
In response to the media outrage at the murder led by Garth McVicar, National passed the Bail Amendment Act making it much tougher for defendants to be granted bail. Projections by the Ministry of Justice claimed the new Bill would increase the number of prisoners on remand by less than 60. But three years later, there are 1,500 new prisoners on remand. None of them have yet been convicted of a crime. They’re being held in prison because a mental health nurse, not a judge, got it wrong and because National gave in to the moral outrage perpetrated by McVicar. As a result, the Corrections Department says we need a new prison. We don’t. We just need to repeal the Bail Amendment Act.
Release more short-term, low risk prisoners
The other quick fix is to let out more short-term prisoners early. The Parole Act defines a short-term prison sentence as one of two years or less. Short-term prisoners don’t go before the parole board – they’re automatically released after serving half their sentence. In 2015, there were nearly 6,000 short-term inmates on a given day (although thousands more than this cycle through the prison within a 12 month period). The Board would be totally overwhelmed if it had to see all these inmates, many of whom are in prison for quite minor offences. So automatic release at the half-way mark is an administrative convenience.
A long-term sentence is anything over two years (from two years up to life). Since 1985 ‘tough on crime’ legislation has significantly increased the number of long term prisoners (see chart above); the number of people given ‘long term’ sentences between two and three years went up 475%. In 2015, there were 765 inmates in this group, out of a total of nearly 5,000 long term prisoners.
These prisoners can only be released before the end of their sentence if the Parole Board decides they no longer pose an ‘undue risk’ to the community. Most attend their first parole hearing after completing one third of their sentence. But that doesn’t mean they get out. In the last few years, the Parole Board has become increasingly risk averse and now less than 5% of inmates are released at their first hearing – after which they serve the rest of their sentence in the community under the supervision of a probation officer. Most long-term prisoners now serve approximately 75% of their sentence. The remainder serve their entire sentence.
So if the definition of ‘short-term’ was changed from two years to three years. That would allow an additional 765 inmates to be released automatically after serving half their sentence. Prisoners serving four or five years could be automatically released after serving two thirds. In 2015, there were 1,645 inmates serving between two and five years. Add this to the 1,500 no longer being held on remand and within five years, the population would be down about 3,000 – which is 30% within five years.
Jacinda Ardern, Prime Minister
Andrew Little, Minister of Justice
Parliament Buildings, Wellington
Dear Ms Ardern and Mr Little,
Your new government has taken some really positive steps in the justice arena after just a few short days in office.
Ms Ardern: On 26 October, 2017, in your first comments as Prime Minister, you said ‘I want the government … to bring kindness back’. In the Guardian newspaper read by millions around the world, you were quoted as promising to form an “active” government that would be “focused, empathetic and strong”.
Mr Little: On your first day on the job as the new Minister of Justice you announced that Teina Pora’s $2.5m compensation for wrongful imprisonment would be increased to allow for inflation. That was the decent thing to do.
In the past you also voiced support for David Bain’s compensation claim. On 27 June 2013, you were quoted as saying that Ms Collins’ handling of the case had cost the taxpayer a “hundreds of thousands, if not millions of dollars, just because she’s made a mistake. And we’re all paying for it”. You said she had acted too fast and without proper consideration of the facts, and that: “I think she’s going to be on the wrong side of this.” On 28 June you repeated your view that Justice Minister Judith Collins had “buggered it up”.
You also advocated for the establishment of an independent commission to review miscarriages of justice. On 27 October 2017, it was announced that such a body will be established under the coalition agreement between Labour and New Zealand First. That’s good news – and long overdue.
But this is too late to help David Bain who, after 13 years in prison and another six years fighting for compensation, received $925,000 provided he agreed to cease all further legal action. The National Government stated that the payment was NOT compensation and Mr Bain would NOT receive an official apology. That was hardly a sympathetic response to Mr Bain’s drawn out legal battle for freedom and compensation.
Questions to Ms Ardern & Mr Little:
Given the compassionate response of the new government to Mr Teina Pora’s situation, will your government respond in a similarly empathic and active manner to Mr Bain. More specifically, is your new government willing to:
Advise Mr Bain that the payment he received is, in fact, compensation for the 13 years he spent in prison?
Increase the amount of compensation he received so it is in line with Cabinet guidelines of $100,000 per year spent in prison? This should take his payment from $925,000 to about $1.3 million.
Adjust the $1.3 million for inflation in line with the courageous Teina Pora decision?
Offer Mr Bain an official apology for the egregious mistakes made by the New Zealand police (as identified by Justice Ian Binnie and ignored by Justice Ian Callinan) which contributed to his imprisonment.
One TOP party policy that hasn’t received much attention in the run up to the election is Gareth Morgan’s wish to reduce the prison population. He argues that rather than rehabilitating inmates, “prisons nurture crime”.
The Corrections Department’s own figures confirm the fundamental ineffectiveness of their rehabilitation programmes. This means that prisons don’t keep us safe either because these unrehabilitated prisoners are almost all released eventually. And prisons are incredibly expensive chewing up billions of hard earned taxpayer dollars that you could be used to fund more teachers, doctors, social workers and infrastructure.
Morgan: Garth we need to reduce the prison population by 50%. We need the money that Corrections spends on locking up prison inmates for other things like housing the homeless, treating drug addiction and improving mental health services in the community
McVicar: No, you’ve got it all wrong, Gareth. That’s what the prisons are for – to provide shelter for the homeless and take care of people with addictions and mental health problems. We need to put more of these losers in prison and get them off the streets.
Morgan: Yeah but that doesn’t solve the problem, does it? These guys don’t get any help in prison and eventually they get released on parole or at the end of their sentence. So, at the end of the day we’re no better off.
McVicar: That’s easily fixed Gareth. First, we need to abolish parole so these scum serve their whole sentence. We have to stop letting them out early. Second, we need to impose much longer sentences so hopefully these crims just die in prison. After all, life should mean life – not three years then out on parole after one year.
Morgan: But only 0.01% of prisoners have killed someone, you know, committed murder. We can’t lock up robbers, shoplifters, drug addicts and drink drivers for life. Sentencing has to be proportionate – you know what I mean – the punishment should fit the crime. And they need help with their addictions.
McVicar: That left-wing claptrap is all well and good – but we have to lock these crims up for a long time to deter other people from drinking and stealing our stuff – otherwise everyone will be doing it.
Morgan: But the academics say that this so-called theory of deterrence doesn’t really work – because most crims are mentally ill, brain damaged or addicted to alcohol or crack. They mostly commit crimes when they’re high as kites or drunk as skunks or to feed their addiction and the possibility of going to prison doesn’t even dawn on them.
McVicar: Don’t talk to me about academics. They’re the ones that got us into this mess by claiming that crime is the result of childhood abuse and dysfunctional parenting. It’s got nothing to do with parenting. My parents beat the crap out of me and look how I turned out. I don’t need an academic to tell me right from wrong. Crime is a personal choice made by people with no moral fibre. Bugger this namby pamby approach, we need to use more corporal punishment on our children – that’s what turns them into real men.
Morgan: But it’s not just men Garth. There’s more and more women going to prison now as well. The vast majority of them have been sexually abused as children and because they’re psychologically damaged, they team up with abusive partners who beat the crap out of them.
McVicar: Well if you choose an abusive partner, you’re deliberately choosing to get beaten up. So, getting beaten up is a personal choice – just like crime. We have to take responsibility for our lives and stop blaming everyone else for our problems. The middle-class intellectuals have been coddling crims for way too long.
Morgan: But we can’t keep locking up more and more people Garth. Prisons are expensive. The prison population is at an all-time high. We’ve got 10,000 inmates. It costs $100,000 a year to lock up just one inmate and National wants to build another prison. When’s it going to stop?
McVicar: It’ll stop when the perverts are all locked up and the streets are safe to live in again…
Martin Van Beynen is a columnist for the The Press in Christchurch. He’s followed the David Bain case from the beginning and is clearly obsessed with it. Right from the start, he was convinced David was the murderer. Twenty years later, despite the Privy Council declaration that there was a miscarriage of justice and the finding of the second jury that David was not guilty, Van Beynen has been unable to accept reality. And the reality is – he got it wrong.
But there’s money to be made. So in July 2017, Stuff released a 10 part podcast Van Beynen put together about the case: Why the David Bain story needed to be told one more time. Van Beynen examines the evidence in detail – in minute detail. In the process, he loses all perspective. He’s so busy looking at the individual trees, he fails to see the forest – or that half of it is missing because of the well-documented incompetence of the Dunedin police.
Let’s not forget that during their investigation, the police allowed some crucial trees to be burnt down (eg: the house where the murders took place). And those incest allegations against Robin Bain were fertile soil in which the trees of the forest were growing – but the police threw them out as seedlings before they even got planted. So Van Beynen only examines the decrepit, well worn trees that are still standing. He only sees what he wants to see – just like the police, who at the time of the crime, turned a blind eye towards the allegations of incest.
Using these myopic methods, Van Beynen still thinks David was the murderer. So do the police of course. One has to wonder – after all these years, why Van Beynen can’t admit he got it wrong? He has a reputation for solid investigative journalism. So why is he still in denial about the Bain case? Perhaps it has something to do with the fact that he has a brother who works for the police – the same police who destroyed half the trees in the forest. Or perhaps its because Van Beynen works for Stuff, and this is an opportunity for them to take his obsession with the case and make more money off it.
In February 2017, New Zealand’s prison population hit 10,100 – an all-time high – and an increase of 364% in the last 30 years. A month later, the NZ Herald reported that 56.3% of that total are Maori – also an all-time high – even though Maori make up only 15% of the population.
Unfortunately, Maori are seven times more likely to be given a custodial sentence than pakeha and eleven times as many Maori are remanded in custody awaiting trial. The corollary is that if Maori were incarcerated at the same rate as non-Maori, there would only be 4,900 Kiwis in prison. Any attempt to explain New Zealand’s high prison population must therefore begin with an analysis of why Maori are so over-represented in our offending statistics.
The impact of colonialism on Maori imprisonment
New Zealand’s colonial past is populated with social, economic and political policies which subjugated and penalised Maori. Moana Jackson (1988) has described these historical policies as…
“specific acts of institutional racism and social policy that have denied Maori people the economic and emotional resources to retain and transmit their cultural values”.
He argues that as a result, New Zealand now has a monocultural justice system that entirely ignores the spirit of the Treaty of Waitangi which was supposed to establish a partnership between the British and Maori; in the Māori translation, it also guaranteed the latter unqualified exercise of ‘chieftainship’ over their own lands, villages, property and treasures.
It is self-evident that if Maori ceased to own their own land, the chiefs’ power base would be diminished and their capacity for partnership eliminated. AUT lecturer, Kylee Quince, says that in the 60 years following the signing of the treaty, this is exactly what happened: the settlers and the colonial government went about acquiring Maori land and resources “by way of negotiation, crooked dealings, warfare and confiscation”.
Prof John Pratt, from VUW, cites evidence that from 1840 onwards, Maori cultural values and mechanisms of social control were also suppressed by the magistrates of the time as the British justice system was imposed on the country. During this period, the Maori language was banned and Maori culture and mana were slowly ‘silenced’.
Jackson argues that as a result, New Zealand now has a monocultural justice system, one that ignores Maori culture and values. Quince says that as a result…
“Maori are underrepresented as police, legislators, judges, lawyers and jurors and consequently lack any input into the norms and processes of the system”.
She goes on to say there is a perception among many Maori that the law is a “blunt pakeha tool of coercion against Maori” and points to the on-going fraught relationship between Maori and police.
Perhaps therefore it should be no surprise that from about 1950 onwards, Maori have been prosecuted more frequently than European offenders, held on remand more frequently, and then sent to prison more frequently. Maori defendants are also less likely to have legal representation and more likely to plead guilty. In other words, there is institutional bias by the police who arrest more Maori, by lawyers who represent Maori and by judges who sentence Maori. Academics ascribe this bias to…
“the formation of unfavourable stereotypes of Maoris in the minds of adjudicating officials”.
This brief introduction to institutional racism goes some way to explaining why 56% of prisoners in New Zealand are Maori.
The introduction of neoliberalism to New Zealand
Things got worse in 1984. Up to that point in our history, New Zealand was a ‘social democratic’ society with a strong focus on full employment, equal opportunities for everyone (except perhaps for Maori) and a supportive welfare state.
But in the latter half of the 20th century, Ronald Reagan and Margaret Thatcher came to power and implemented neoliberal, trickle-down economic policies. In 1984, these feral ideas found fertile soil in New Zealand under the Labour Government of David Lange and Roger Douglas. New Zealand abandoned its long-standing commitment to full employment, sold off state assets, removed subsidies to industry and agriculture, and cut welfare payments. Over the next 30 years, the gap between the rich and the poor grew at an alarming rate, and the compassionate egalitarian society we once perceived ourselves to be, began to dissolve.
Unfortunately, neoliberalism is also associated with punitive penal policies towards those who can’t keep up. Cavadino and Dignan (2006) write:
“The neoliberal society tends to exclude both those who fail on the economic marketplace and those who fail to abide by the law – in the latter case by means of imprisonment… as a general rule, economic inequality is (also) related to penal severity: the greater the inequality in society the higher the overall level of punishment”.
New Zealand commentator Max Rashbrooke says this happens because the income gap causes people to “lose their sense of what life is like for people in the other half”. Kylee Quince agrees that New Zealand is ‘incredibly harsh on people’ at the bottom of the socio-economic ladder. She points out that:
“About half of people in prison in New Zealand are there for property and drug offending. Very few Western nations send people to prison for those types of offences”.
In general, those treated the harshest are Maori who have been at the bottom ever since their lands were stolen.
Explaining the relationship between neoliberalism and our high rate of imprisonment
John Pratt believes that ‘penal populism’ is the mechanism by which neoliberalism exacerbated our exploding prison population. He says the social and economic changes introduced in the 1980s created a sense of existential angst; job security disappeared, the influence of trade unions declined, finance companies collapsed and inflation went up. The rising crime rate (prior to 1990) also contributed to these anxieties.
Prof Pratt believes there was a perception that governments were no longer in control (of crime in particular), and that politicians and political processes no longer responded to the needs of ‘ordinary people’.
In 1996, this dissatisfaction with the political process led to the abolition of ‘first past the post’ and the introduction of MMP. This facilitated the rise of the Act party which was subsequently responsible for the introduction of a ‘three strikes’ laws in New Zealand. This adds to the prison population by reducing the availability of parole.
In the latter half of the 20th century, there were also significant changes in the structure of the media. Public service television virtually disappeared while social media and talkback radio enabled ordinary citizens, as opposed to experts, to express their point of view. Emotion rather than reason became a legitimate and significant portion of the political narrative. Governments stopped listening to what judicial experts had to say about the ineffectiveness of prison as a deterrent and passed more ‘tough on crime’ laws. In response, between 1985 and 1999, the prison population doubled.
From 2001, the so-called Sensible Sentencing Trust played a major role as journalists increasingly turned to Garth McVicar for ‘expert’ analysis. Because of the extraordinary exposure McVicar was granted by the media, ‘law and order’ became the dominant discussion of the decade. As a result, even though crime began dropping in the 1990s, the public were led to believe it was still going up. Between 2000 and 2008, the Labour Government had to build four new prisons to keep up with the consequences of their punitive policies.
The National Party also played its part. In 2011, in response to the murder of 18-year-old Christie Marceau who was stabbed to death by a young man on remand, Garth McVicar began yet another law and order campaign. National then introduced the Bail Amendment Act (2013) making it substantially harder for offenders awaiting trial to get bail.
The number of prisoners on remand sky-rocketed and in 2015, the prison population hit 9,000. In a propaganda piece in the NZ Herald, Justice Minister, Judith Collins attempted to blame the growing prison population on an increase in violent offenders. But even she had to acknowledge that most of the increase over the previous 12 months was due to the growing number of inmates on remand. In her superficial explanation, Ms Collins omitted to mention that the vast majority of these remand prisoners are Maori. In fact, she made no mention of the over-representation of Maori in prison at all. Nor did she mention poverty or the increase in inequality in New Zealand as contributing factors to the burgeoning prison population.
Another year has gone by and now over 10,000 Kiwis are in prison. It is not possible to explain New Zealand’s record high rate of imprisonment without reference to New Zealand’s colonial past. There is no doubt that this pushed Maori to the bottom of the socio-economic ladder. The introduction of neoliberal policies in the 1980s increased economic disparity pushing Maori (and everyone else near the bottom rung) down even further. For the homeless, it pushed them off the ladder altogether – often into prison.
By highlighting violent crime, the Sensible Sentencing Trust, with the willing help of the media, then united the National and Labour Parties in a seemingly endless competition to be tough on crime. ‘Criminals’ have become an easy target, scapegoated by politicians of every persuasion for practically every problem in society. In this punitive environment, passing tough on crime laws is easy. No wonder our prison population is at an all-time high.
Three weeks ago, the Ombudsman Peter Boshier, issued a report which said the Corrections Department had been tying difficult prisoners to their beds for up to 16 hours a day. The report described one case as follows:
“The man spent almost 600 hours restrained on the bed and in some cases was not released in order to go to the toilet. His limbs were not moved during the periods of restraint… The inmate also did not receive his medication upon being imprisoned…Corrections also failed to seek medical approval to secure the prisoner to the tie-down bed 36 out of 37 times.”
The five prisoners subject to this inhumane treatment were deemed to be at serious risk of self-harm. In the absence of adequate mental health treatment in prison, chief executive Ray Smith (below left) justified these extreme measures as the only way to keep these inmates alive.
Peter Boshier identified four different prisons where this insidious substitute for mental health treatment was taking place: in Auckland, Christchurch, Otago and Waikeria. He said the way these prisoners were treated was so cruel, the Department was in breach of the Crimes of Torture Act 1989.
That’s a pretty serious allegation. Section 3 of this Act, says that anyone who commits an act of torture in New Zealand can be sent to prison for up to 14 years. If it’s that serious an offence, you’d think the media would be up in arms, the police would take immediate action and the prison managers who allowed this mistreatment to take place would be prosecuted.
But that didn’t happen of course. Ray Smith assured the public that the matters were “fully investigated and appropriate action taken”. You must be joking. One prison officer was fired (for assaulting a prisoner who was already tied down). No one was prosecuted for torture and the media lost interest in the story two days later. Why? Because the victims of these crimes are prisoners; and for the last 20 years or so, with the willing help of the media, the Sensible Sentencing Trust and most MPs have successfully depicted prisoners as something less than human.
As such, they don’t seem to have any rights. Well that’s certainly what Labour MP, Stuart Nash, seems to think. After hearing last week that the High Court said convicted murderer, Phillip John Smith, had the right to wear a toupee in prison, Nash pushed his unrestrained mind into overdrive and posted a message on Facebook claiming “He has no rights!!” He went on to suggest other inmates should scalp Mr Smith. This is what he wrote:
“Scalping is associated with American Indians but it was actually started by Europeans. Perhaps someone in jail who isn’t too fond of monsters who destroy little boys’ lives by stealing their innocence in the worst way possible could reintroduce Mr Smith to the practice.”
Posting an incitement to violence on Facebook is a potential breach of section 22 of the Harmful Digital Communication Act which states:
A person commits an offence if the person posts a digital communication with the intention that it cause harm to a victim;
Posting the communication would cause harm to an ordinary reasonable person in the position of the victim.
Will Nash be prosecuted? Of course not. This is the era of fake news where myths, spin, and slander are normal narrative – often replacing the truth. Even law professors are not immune from this insatiable need to denigrate those in prison as less than human. In an opinion piece in Pundit, Otago law professor, Andrew Geddis (below) argues that Phillip Smith does have rights, including the right to wear a toupee. But in order to show he’s not a snowflake or a bleeding-heart blouse, Geddis describes Smith as ‘a piece of shit’ – adding ‘most definitely’ for good measure.
That may not be against the law – although one could well argue that such a ‘communication would cause harm to an ordinary reasonable person’. If someone texted that to a schoolboy (or girl), it would be called bullying. Calling an adult a piece of shit online (where it lasts forever), could well cause an ordinary person hurt and distress. Sometimes this kind of abuse leads to suicide.
The thing is – prisoners in New Zealand are barely seen as people, let alone ‘ordinary’ or ‘reasonable’. You can say anything you like about them. It seems you can also do anything you like to them. You can house them in shipping containers; feed them poor quality food; lock them up for 23 hours a day; deny them access to mental health treatment when they’re suicidal; expose them to fight clubs and violence; withdraw opiate pain medication when they need it; deny them access to the dentist when they have toothache or an abscess; prevent them from voting in elections; prevent them from talking to the media – the list goes on.
Now you can even torture prison inmates and encourage them to scalp each other. Except for the Ombudsman, no one in New Zealand seems to give a shit – because according to the Sensible Sentencing Trust, Stuart Nash and now a prominent law professor in New Zealand, that’s all they are.
In April last year, Radio New Zealand reported that the Corrections Department was paying for non-existent alcohol and drug counsellors. The story omitted the fact that most of the AOD counsellors who do work in the prisons are not actually qualified – at least not in addiction treatment.
The qualifications required to work as an AOD counsellor in prison are described in tender documents issued by Corrections recently. The documents relate to Drug Treatment Units (DTUs), the prison programme that inmates with addictions are required to attend. The tender states:
“DTU programme clinical staff and the DTU clinical manager will have a relevant qualification in psychology, counselling, psychotherapy or similar.
Remarkably, the document does not specify that the ‘relevant qualification’ has to be a graduate degree. Nor does it state that clinicians require a qualification in the assessment and treatment of addictive disorders.
Currently an AOD agency called CareNZ has contracts with Corrections to run eight of the nine DTUs. CareNZ also has contracts with a number of DHBs up and down the country to provide addiction treatment to the public in community clinics. The DHB contracts are a great more specific. For example, CareNZ’s contract with the Waikato DHB says:
“Clinicians employed to deliver these services must have a level VII (graduate) AOD specific qualification.”
Clearly, the DHB’s want value for money; they want professional clinicians to treat addicts – ones who are specifically qualified in the treatment of addictive disorders. But Corrections doesn’t seem to care. Perhaps that’s because their clients are only prisoners – so any old counsellor with any old qualification will do. If that’s their attitude, no wonder drug treatment in prison doesn’t work.
Review of DTU’s under CareNZ
And it doesn’t work. Hundreds of inmates are put through these DTU programmes each year and they reduce reoffending by less than 5%. Mind you, 11 of the 12 rehabilitation programmes in prison don’t work. Corrections management are concerned about this because in 2011, Government set the Department a goal to reduce reoffending by 25% by June this year.
So when RNZ reported that Corrections was paying for non-existent counsellors, Corrections’ Southern Regional Commissioner, Ben Clark, spun the story like this. He said:
“If we had cause for concern that Care NZ weren’t delivering an effective service to our offenders, and weren’t giving the taxpayer good value for money, then absolutely we would look to put that money elsewhere, but so far we have no evidence of that being the case.”
Less than 12 months later, Corrections has decided to put the taxpayers’ money elsewhere. They’ve put the DTU contracts up for tender. The tender process is nearly complete and my sources tell me that six of CareNZ’s eight contracts have now been offered to other AOD treatment agencies. But as described above, neither CareNZ nor any of the new treatment agencies will not be required to use qualified or experienced clinicians.
Prison inmates have extra needs
This makes no sense whatsoever. There are now over 10,000 people in prison in New Zealand and up to 90% of them have problems with substance abuse. At least 45% of inmates also have underlying personality disorders, mental health problems, and learning disabilities. They often use alcohol and drugs to alleviate the symptoms associated with these disorders.
Not forgetting that addictions are hard to treat at the best of times; treating inmates with coexisting disorders is even tougher. The counsellors who work in prison therefore need to be as qualified, if not more qualified and more experienced, than AOD clinicians in the community. At the very least, they need to have a graduate degree in the assessment and treatment of addictive disorders; and they need at least five years’ experience working with addicts in the community before starting work in a prison.
So what’s happened is that Corrections has used CareNZ as a scapegoat. That particular agency’s role in the prison system has been cut, but nothing will change if the clinicians doing the counselling can’t cut the mustard. To use another analogy, changing agencies is akin to re-arranging the deck chairs on the Titanic; unless the right people are sitting in the right chairs, the ship is still going to sink.
David Bain’s wikipedia page is so biased it breaches one of wikipedia’s five key pillars – the one on neutrality. For the real story, with details about every aspect of the case and the people involved, click here.
Wikipedia has strict policies about the nature and quality of information or pages added to its website. The articles are supposed to be written from a neutral perspective, presenting all the major points of view, especially on controversial subjects. This is how wikipedia describes neutrality:
“All encyclopaedic content on wikipedia must be written from a neutral point of view (NPOV), which means representing fairly, proportionately, and, as far as possible, without editorial bias, all of the significant views that have been published by reliable sources on a topic…
Biased (or one-sided) information can usually be balanced with material cited from other sources to produce a more neutral (or balanced) perspective…
When reputable sources contradict one another, and are relatively equal in prominence, describe both points of view and work for balance.”
“Editors must take particular care when adding information about living persons to any Wikipedia page. We must get the article right… Wikipedia is an encyclopaedia, not a tabloid: it is not Wikipedia’s job to be sensationalist, or to be the primary vehicle for the spread of titillating claims about people’s lives.”
1) The title of the page – Bain family murders – is deliberately misleading:
Wikipedia notes that: “In some cases, the choice of name used for a topic can give an appearance of bias.” In David Bain’s case the title, Bain family murders, implies that all those who died, including Robin Bain, were murdered. It therefore points the finger at David. In so doing, it negates the alternative option put forward by the defence, that Robin Bain killed his family and then committed suicide.
The page should either be called David Bain, which, by itself, does not accuse him of anything, or possibly called the Bain familicide which is how family killings are described by criminologists – and which doesn’t point the finger at any one person.
2) Lack of balance in content
a) More information describing the guilty verdict than the non-guilty verdict.The article has five paragraphs describing what happened at the first trialat which David was found guilty. The section on the retrial, at which David was found not guilty, contains only two sentences. The retrial section does not mention any of the information presented by the defence which was the basis for the not guilty verdict. It simply says he was found not guilty – as if it was some kind of fluke.
b) Key information missing from Privy Council section.The section on thePrivy Council mentions nine points that David’s defence team presented to the Privy Council but doesn’t describe any of them in any detail. As a result, the article omits all the information necessary for the reader to understand why the Privy Council came to the conclusion that there had been a miscarriage of justice.
The section on the Privy Council contains only one paragraph about what happened. There is more information detailing the case against David in the first trial (where he was found guilty), than in the Privy Council hearing and the retrial combined.
c) The section on Joe Karam has been removed. Joe Karam played a key role on David’s long battle for freedom and then fought for his compensation once he was released. There should be a separate section describing his involvement in the case. But he gets only three lines in passing under the section headed appeals. This means the extensive evidence that Karam put together suggesting that David was innocent and that Robin was the likely killer is entirely missing from the page.
About the judges. There is no mention of the vastly differing reputations of the two judges charged with investigating David’s compensation claim – Ian Binnie and Ian Callinan. Binnie had an impeccable reputation as an international jurist; Callinan had a very dodgy reputationand, by all accounts, was only appointed as a judge in Australia because of his conservative views. He seems to have been appointed to adjudicate Bain’s compensation claim for the same reason.
About the quality of Callinan’s report. Although the article contains some analysis of Binnie’s report (by Judith Collins and Robert Fisher), there is no analysis of Ian Callinan’s conclusion that David had not proved his case. Joe Karam pointed out that Callinan’s report contained many of the same errorsthat Binnie was accused of making, which is why he and the defence team were going to challenge it in court – until David decided to accept the $925,000 non-compensation offered by the Crown if he gave up all further legal action.
About Judith Collins. Judith Collins’ decision to give a copy of Binnie’s report to the Solicitor General and the Police is mentioned but her decision not to give a copy to David’s defence team is not. Although the article says that Bain subsequently filed a claim in the High Court alleging Collins had breached natural justice, it doesn’t say why; and there is no indication of the controversy this caused or the bias that Collins displayed in handling the case.
Although the article mentions that the public mostly thought Bain should receive compensation, there is no mention of the criticism from numerous academics about the Government’s handling of the compensation claim which, in the end, involved three lengthy reports and cost just as much in legal fees as David got paid out.
Not only did David struggle to find justice in New Zealand, he won’t find it on his Wikipedia page either.
The Corrections Department in New Zealand puts out a monthly magazine called, guess what – Corrections Works. This pithy little propaganda sheet provides a pat on the back to any Corrections staff who perform up to expectations or do anything reasonably well in the previous month. The magazine also contains a monthly Message from the Minister, in which, just before Bill English gave her the push, Collins confesses that under her control, Corrections hasn’t been working at all.
For years, the Crusher has consistently claimed the Department is “extremely focused on reducing reoffending” but in Corrections Works, she reveals – with great embarrassment – that:
“The target of reducing reoffending by 25% by 2017 was a laudable aim… (but) progress is slow, the reoffending rate has dropped by (only) 5.6%.”
Of course, no one at Corrections reveals that the figure of 5.6% only applies to the first 12 months after release from prison. Beyond that there is no reduction whatsoever and 50% of inmates are back inside within five years. So this is Collins’ most fundamental failure – making bold claims about reducing reoffending – but not being able to perform.
Collins is also responsible for the overcrowding crisis in our prison system which has contributed to these poor results. There are now over 10,000 Kiwis locked up – an all-time high. This mass incarceration is almost entirely due to the raft of ‘tough on crime’ Bills introduced by Judith as Minister of Justice from 2011 to 2014. She pandered to ACT by passing the three strikes law; made sweeping changes to bail laws making it much harder for defendants to get bail; and raised the bar for prisoners seeking parole so they end up serving more time in prison and struggle to reintegrate afterwards.
Although all categories of prisoners are up, the biggest increase has been in the number held on remand – Kiwis that have not yet been found guilty of the crimes with which they are charged.
These policy changes have put the prison system under enormous pressure. This pressure cooker has had the biggest impact on Mt Eden prison where most remand prisoners are held.
There is also no getting away from the fact that Collins was the Minister in charge of Corrections when Mt Eden was contracted out to Serco, a private British company with a well-established track record of failure. We all know how that turned out. Poor old Sam Lotu-Iiga carried the can for the fight club debacle, but there is no doubt he was set up to fail by Collins. As The Spinoff argues in this excellent analysis of Judith Collins’ many failures:
“It is the Minister of Justice who sets the agenda and the policies for the justice system. Corrections just wipes up the mess that follows.”
Before Bill English gave her the boot as Corrections Minister, Judith got to announce one more massive mistake which is likely to have a detrimental impact for years to come. Displaying her punitive personality for all to see, she proclaimed (in Corrections Works) she “was pleased to announce that the government has approved plans to increase prison capacity by 1800 beds” and that the Government was going to spend (in reality waste) $2.5 billion of the taxpayers’ money doing so. Collins was pleased because she continues to believe that prison deters criminal offending – and has never bothered to read the criminology research which overwhelmingly shows that prison acts more like a university for crime than a deterrent.
Bill English, on the other hand, believes that early intervention and targeting dysfunctional or struggling families is the best way to help at-risk kids before they become the next generation of prisoners. He quotes research which shows that on average, children brought up in at risk environments will cost the state $270,000 over their lifetime compared with just $33,000 for those who are fortunate enough to be born into pro-social environments which are relatively risk free.
Bill has the support of the new Justice Minister Amy Adams who says the Government doesn’t have “vast amounts of money to throw at new things”, but was going to look at social and mental health interventions with at risk families to see if they would make a difference.
Ironically, the reason the Government doesn’t have vast amounts of money to address the drivers of crime is because they keep spending it on new prisons. And this is why Bill had to fire Judith. Using her roles as Justice and Corrections Minister, Collins has been taking the country in a direction that Bill clearly doesn’t want to go.
So does this mean that as Prime Minister, Mr English is now going to cancel the new prison and put the $2.5 billion into social justice investment? Not bloody likely. Not unless he wants to lose the next election as badly as he did in 2002. For Government, holding onto power is always more important than implementing evidence based policy that might actually make a difference.
There is a cheaper option. The government could simply repeal Judith’s Bail Amendment Act and reduce the prison population overnight. That would save $2.5 billion at the stroke of a pen.
What are the chances of that happening? None whatsoever.
That would be an admission of failure. For politicians, sticking to your guns – even when you know you’re heading in the wrong direction – seems to be far more important than admitting you made a mistake. It’s much easier to find a scapegoat and blame it all on him, or her. Who fits the Bill? Judith Collins, of course.
In 2011, Bill English claimed that prisons were “a moral and fiscal failure” and New Zealand should never build another one. Well said – and achievable – but only if Governments stop pandering to the so-called Sensible Sentencing Trust and the moral panic manufactured by the media whenever a violent crime occurs.
Later that year, the Government set the Corrections Department a goal – to reduce reoffending by 25% (by 2017). Perhaps Mr English thought that if reoffending declined, so would the prison population – or at least it wouldn’t go up.
In October this year, Mr English and the Government had to admit total defeat on both counts. Reoffending has been reduced a little (by about 8%) – but only in the first 12 months after completion of a rehabilitation programme. After that, the reoffending rate is back to normal – which means 52% of prisoners return to prison within five years. The long-term reoffending rate has not changed in years.
In the meantime, the prison population has hit an all-time high and the government says it is going to build yet another prison. This increase in prison capacity is going to cost you and me, the taxpayer, an additional $1 billion. Imagine what the education sector could do with another billion dollars – more teachers, better pay, smaller class sizes, with staff satisfaction and retention improved. Imagine what the health sector could do with another billion dollars – reduced waiting lists, better access to mental health care and addiction treatment, better support for those on low incomes and a reduction in New Zealand’s escalating poverty statistics – all of which would likely lead to less crime.
We have to provide the capacity – yeah right!
Announcing his Government’s moral and fiscal failure, Finance Minister Bill English contradicted his 2011 statement about no more prisons saying: “This is something that has to be done. We have to provide the capacity.”
No – we don’t. There is absolutely nothing inevitable about this increase in our prison population. It is entirely the result of penal policies passed by both Labour and National governments in the last few years – policies which have been getting more and more draconian. In a press release in 2002, Tougher laws driving up prison population, Justice Minister Phil Goff said tougher sentencing and parole laws enacted by the Labour government would increase the prison population by over 20% in the next seven years.
This year Judith Collins said the continuing increase was due to tougher laws passed by National. She said criminals are getting longer sentences but that the muster blowout since 2014 has mostly been driven by a 40% increase in the number of prisoners on remand. That blowout stems from changes to the Bail, Sentencing and Victim’s Rights Acts.
There is absolutely nothing inevitable about this. Prof John Pratt of Victoria University would say it is entirely due to political populism – whereby politicians follow the dubious wisdom of victims groups and the media instead of taking advice from criminologists and justice sector experts.
“Finland has cut its imprisonment rate by two-thirds in the past 50 years, with no apparent effect on the crime rate.”
He quotes Tapio Lappi-Seppala of the Finnish Institute of Legal Policy who said Finnish judges, lawyers and politicians were ashamed of their high rate of imprisonment compared with other Nordic countries which had quite low rates.
In the 1960s, on their own initiative, judges in Finland started imposing shorter sentences on a variety of offenders. In the 1970s, politicians backed up the judges with two key law changes: imprisonment for theft and drink driving were abolished and replaced by fines and ‘conditional imprisonment’ – offenders stayed out of jail as long as they did not reoffend. Then in 1994, a new sentence of community service was introduced to replace short jail terms.
The result was a dramatic drop in the rate of imprisonment from 195 down to 66 inmates per 100,000 of the population. This proves it can be done. During this same period (1960 to now) New Zealand’s rate of imprisonment has gone up and up. In 2016, it topped 200 people per 100,000 – four times higher than Finland’s. This puts us on a par with Mexico (204) and way above Australia (152), the United Kingdom (146), China (118) and Canada (114). Altogether New Zealand locks up more people per head of population than 150 other countries.
“It’s time to start making different choices. Our history of youth justice is a reminder we have changed paths before: in less than a decade between 1988 and 1996, we cut the number of children in state institutions from 2000 to fewer than 100.”
If we can reduce the number of children in state institutions (and the number of psychiatric patients in state care), surely we reduce the number of adults in our prison system. Spending $1 billion to increase prison capacity is an irresponsible and appalling waste of taxpayers’ money. It would be much better spent in the education and health sectors – where it would actually contribute to reduced offending.
Familicide is the name given to a particular kind of multiple murder – where one member of a family kills virtually everyone else in the family. If the perpetrator commits suicide afterwards (which occurs in 60% of such cases), it is referred to as familicide-suicide.
In June, 1994, David Bain was accused of shooting all five members of his family – the crime of familicide. He was found guilty and sentenced to life in prison – although according to Canadian judge Ian Binnie ‘no plausible motive ever emerged’. He spent 13 years in prison before a retrial, at which he was found not guilty.
Throughout this process, David’s defence team argued that Robin Bain killed his wife and children while David was out delivering newspapers; that he typed the cryptic message found on the family computer (‘Sorry. You are the only one who deserved to stay’) and then shot himself – in a case of familicide-suicide.
Binnie said David should get compensation. The Government didn’t like that idea and shopped around for another judge – one who was willing to write a report declaring that David didn’t deserve it. They found one in Ian Callinan QC, who had a history of bending the rules in Australia.
So far, not much has been reported in the New Zealand media about Callinan’s dodgy legal ethics or the extraordinary flaws in his compensation report. But there’s a wealth of information available on the David Bain Campaign website.
But there’s another side to this story which has not seen much daylight either. A systematic review of the literature on familicide found a number of common factors in such incidents. The first is that in 95% of cases where both parents were killed, the perpetrator was the father. Only 1% of familicides are committed by an adult son. The researcher wrote:
“In cases where (one of the) sons killed both parents, the research indicates that the perpetrator is always either severely abused, suffering from severe mental disorders (usually psychotic) or psychopathic. There are no identified cases where the son exhibits none of these pathologies and does not commit suicide.”
Second, many of these fathers displayed symptoms of depression prior to the killings and a number of Robin Bain’s professional colleagues testified to this effect. Fellow teachers described Robin at the time of the killings as “deeply depressed, to the point of impairing his ability to do his job of teaching children”.
He also published graphic and inappropriate stories of violence and killings by his 9-year-old pupils in the school newsletter; one of those stories involved the murder of an entire family. The president of the Taieri Principals’ Association at the time, found this “unbelievable” and regarded the publication of these stories as “the clearest possible evidence that Robin Bain had lost touch with reality due to his mental state” (Privy Council, 2007, para 41). The publication also suggests Robin had possibly been planning to kill his family months in advance.
It appears Robin Bain never sought professional help for depression, but this is another point of commonality; fathers who commit familicide tend to view themselves as the head of the family, and “control their outer image closely, rarely confiding in people or seeking help”. The fact that family and friends said Robin appeared to be happy is consistent with other familicides; such men internalise their personal sufferings in order to maintain appearances.
Angry vs despairing perpetrators
The literature also suggests there are two types of familicide perpetrator. At one end of the continuum, there is the angrytype – men who have displayed a well-established history of anger and hostile behaviour, especially towards women. For this type, the killing of one’s partner and children is an act of revenge or punishment, usually following parental separation. At the other end of the continuum, there is the despairing type of perpetrator who has no previous history of hostile behaviour and is generally well regarded in the community. This description applies to Robin Bain. For this type, familicide, followed by suicide is “an escape both for himself and his family from an intolerable future”.
In addition to feelings of depression and anger, the literature shows that familicide is generally preceded by a prolonged build-up of shame. This usually follows parental separation or a serious breakdown in the relationship; loss of employment or significant financial losses may also be involved. These lead to a psychological loss of control and/or a perceived loss of social status. Robin Bain also fits this profile. He and Margaret had been estranged for several years and by all accounts, he was unfulfilled in his job. He had applied for a number of other teaching positions, but was unsuccessful.
But for Robin Bain, there may have been an even greater source of shame. He was a Christian, a Freemason and a respected member of the community. At the second trial, witnesses said he had been committing incest with his youngest daughter, Laniet, ever since the family came back from Papua New Guinea. If indeed he had been molesting her, this would have created intense feelings of guilt and internal conflict. It seems that “despair is the end-state for these perpetrators”.
The triggering event
The research also found that in most cases of familicide there is usually some kind of triggering event, one which leads to a sense of “ignominy, terminal public shame, mortification and self-disgust”. Testimony at the second trial suggests Laniet was about to reveal to the rest of the family what her father had been doing to her. It seems the potential loss of face Robin Bain was facing was so great, he not only killed everyone else in the family (except David), he also shot himself. This is another point of commonality. In over 60% of familicide cases, the offender subsequently commits suicide.
In summary, David Bain did not have an identified motive, did not have a mental health disorder and did not commit suicide. Robin Bain did, or had, all three. In every single aspect of this case, it is Robin Bain rather than David Bain, who fits the profile of the typical perpetrator of familicide, followed by suicide.