Fri Aug 12

Sam Uffindell was lucky to avoid NZ’s criminal justice system as a schoolboy – but it was the right outcome

Written by: James Mehigan, Senior Lecturer in Law, University of Canterbury

However you look at it, the National Party has selected someone who once committed an act of criminal violence ^[1] to represent the Tauranga electorate in parliament.

It’s an unfortunate move for a self-styled party of law and order, but perhaps it should be welcomed. If the party is able to forgive Sam Uffindell, then perhaps it’s also time for bipartisan efforts to make the justice system itself more forgiving, particularly when it affects children.

There have been more allegations about Uffindell’s past behaviour, and the National Party has begun an inquiry. But by his own admission, Uffindell took part in a group attack ^[2] when he was a 16-year-old schoolboy that led to the serious bruising and traumatising of a 13-year-old pupil.

The victim has said he believed wooden bed legs were used ^[3] in the attack. Although he was lucky not to be more seriously injured, the perpetrators were perhaps even luckier.

Treating children as criminals

As a criminal barrister I have advised many clients over the years whose murder convictions were based on attacks by small groups using improvised blunt weapons. They were unlucky enough that the victim’s injuries led to their death. The schoolboys in this case were perhaps lucky enough this didn’t happen.

If you attack someone with blunt instruments as part of a group action you are running the very real risk of a homicide conviction. The difference between a life sentence and a life representing a political party may be just a matter of inches.

The attackers in the Uffindell case were also lucky enough to avoid the justice system. This is significant because if you enter the justice system as a child (aged under 18 according to the UN Convention on the Rights of the Child ^[4]) it is remarkably difficult to get out.

Early conviction is a major predictor of future offending. What’s known as “labelling theory ^[5]” suggests that defining someone as “criminal” at an early age helps create a self-fulfilling prophecy. Children treated as criminals early on begin to assume that identity.

For this reason, child rights advocates urge the use of diversion and other methods ^[6] of dealing with children who engage in criminality. An informal version of this is exactly what happened to Uffindell.

Scaling up forgiveness

Expulsion from school is certainly a harsh penalty. But in effect, Uffindell was simply moved to a different branch of the Anglican boarding school network. He avoided conviction and criminal punishment and went on to be forgiven and welcomed into the banking and political establishments.

This is, in fact, a great outcome for children who commit a crime. Their later lives are not ruined and they are able to grow out of their immature and violent phase. This forgiveness and informality is to be welcomed.

The question, then, is how do we take such forgiveness to scale? How do we ensure that someone with a different background, who committed the same offence in a different setting, also gets the benefit of this forgiveness? This is the new challenge for National.

Uffindell used part of his maiden speech ^[8] in parliament to mark himself out as tough on crime. He bemoaned (apparently without irony) “a growing culture of lawlessness, lack of accountability, a sense of impunity”.

Less well reported were his calls for a “social investment” approach to reducing crime. This involves investing early in the lives of at-risk people to prevent the state being what Uffindell called “the ambulance at the bottom of the cliff”.

As a beneficiary of forgiveness himself, perhaps he is open to more progressive justice policies.

New Zealand out of step

There are many ways to reform the justice system for children. But the two biggest (and legislatively perhaps the easiest) reforms would be to raise the minimum age of criminal responsibility (MACR) and to eliminate life sentences for children.

Currently, both these policies mean New Zealand is out of step with international standards. Our MACR is ten, a “low” age according to the OECD ^[9]. Only three other OECD members share an MACR as low as this.

The New Zealand Human Rights Commission has argued the minimum age should be raised to 14 ^[10]. While children aged ten and 11 are unlikely to have charges end in court, 2% of charges ^[11] that ended in court in 2021 involved 12 and 13 year olds.

At present, once you’ve reached the age of ten, the state can send you to prison for life. This happened only last week in New Zealand to a 15-year-old boy ^[13].

Again, this is out of step with standards in the EU ^[14] and elsewhere. While the UK and the US do use life sentences for children, it’s notable that only one EU country (Ireland) imposes them.

If children committing serious offences can be managed without a life sentence in Germany and Spain, why can’t New Zealand do it too? Instead of ruining more lives with life sentences and ineffective criminal convictions, why not reduce the scope and severity of penalties for children who offend?

Is it now time for the National Party – and others – to ask whether the forgiveness shown Uffindell should be extended to all young people. Major reform of the justice system for children is long overdue. Perhaps that can be Sam Uffindell’s legacy.