Paroled murderer Richard Lakich needs a new heart, and Parliament is considering an ACC amendment that disentitles criminals. Are these hard choices, or heartless choices?

Richard Lakich took a police officer’s life; now he will pay with his own.

That’s Lakich’s choice. Other criminals, injured committing offences, will not have a choice: their ACC entitlements will, in future, be minimal. When a judge has set the price for a crime, by way of the sentence imposed, is that kind of collateral discrimination justified? Should criminal offending be relevant to these choices? Might it, in some cases, be a short sighted cost benefit analysis -- or just political populism?

The Injury Prevention, Rehabilitation and Compensation Amendment Bill, on which select committee submissions are being heard, has clauses denying compensation to injured criminals. Other than treatment costs and surgery necessary to make the person fit for work, ACC must not provide any of the usual entitlements if three criteria are met: the claimant suffers a personal injury in the course of committing an offence; the offence is punishable by a maximum prison term of two years or more; and the claimant receives a prison sentence for committing the offence.

Arguably this is not a new development in principle, but an extension of the current law. Under the Injury Prevention, Rehabilitation and Compensation Act 2001, there is a similar disentitlement for injuries incurred committing murder. What's more, ACC may ask the District Court to order that compensation would be “repugnant to justice” if a claimant suffers personal injury committing an offence, and receives a prison sentence. Those court orders are made having regard to a list of factors, such as gravity of the offence, the claimants culpability, and the claimant’s need. According to ACC Minister Nick Smith, they are rarely granted.

The bill reverses the presumption, so that non-entitlement is automatic once the criteria are met, with discretionary provision for ministerial departure from the rule in exceptional circumstances, rather than vice versa.

In 1988, reviewing the ACC scheme as it had operated to date, the Law Commission (Rt Hon Sir Owen Woodhouse presiding) said:

The accident scheme protects the whole population against the consequences of personal injury. It depends upon an acceptance of community responsibility. … This scheme is not in any sense an insurance system. Its benefits are provided as of right without reference to cause and regardless of risk (my emphasis). It is simply one component of the general social welfare provisions of the country.

Whether that remains a proper ethos for ACC, or whether it has out of necessity taken on more of the characteristics of an insurance scheme, is the subject of political debate. However, assuming it remains true, or largely true, the state doesn’t, to my knowledge, deny convicted criminals the benefit of the many other forms of welfare -- although of course, it’s not unprecedented for them to suffer some other collateral damage in consequence of a conviction, such as restricted international travel, or ineligibility for some types of work.

However, 20 years earlier, the 1967 Woodhouse Report that was the genesis of ACC was perhaps less sweeping in its generosity:

Just as a modern society benefits from the productive work of its citizens, so should society accept responsibility for those willing to work but prevented from doing so by physical incapacity. And, since we all persist in following community activities, which year by year exact a predictable and inevitable price in bodily injury, so should we all share in sustaining those who become the random but statistically necessary victims. The inherent cost of these community purposes should be borne on a basis of equity by the community.

This has a strong flavour of productive, normal, socially desirable activity -- as opposed to criminal activity. Another part of the report refers to chance victims of “a necessary or an acceptable social activity”.

Compensation is said to stem from a social contract, which criminal offenders have broken; and anyway, in hard times, maybe we just need to make hard choices, as we must with healthcare choices. There aren’t enough hips and hearts and dialysis machines and money to go around.

However, whether or not it’s right, this amendment is slipping through largely unnoticed. There’s zero political interest by either of the major parties in being seen to be “soft on crime”; then there’s poster boy Graeme Burton [corrected: ed], shot in the leg by police and now an amputee, whose state-funded prosthetic leg rendered him sufficiently mobile to attempt murder on another prisoner. The numbers affected are said to be small, which means this measure will save little money, despite being categorised in the Bill as one of the “cost containment amendments”. So either it’s political populism, or needs to be defended on principle -- either way, it deserves more than a passing glance.

If we think that’s all ok, there’s bound to be little sympathy for Richard Lakich, who featured on last weekend’s Sunday programme.

Convicted murderer Lakich needs a heart transplant but considers that he should not have it, and refuses to put himself on the list, because available hearts should go to better people. Lakich bludgeoned a police officer to death 20 years ago, after an armed robbery. As he tells the story, in what is very likely a selective and self-serving reconstruction, there were strong elements of self defence, which clearly the jury did not accept.

From Lakich’s description of his medical condition -- epilepsy, two strokes, and two heart attacks -- it is possible he would not in any event be a good medical prospect for transplant. His victims admired and praised his attitude, as I sort of do myself. But he’s served his time, and he has a little boy who needs a Dad; when asked about fatherhood, twice, his face lit from within.

Plenty of people will think it’s the right result, or be insufficiently exercised to try to talk Lakich out of it. I’m quite ambivalent myself, to be honest. So please don’t shoot the messenger, but do chat amongst yourselves -- what do y’all think?


Comments (6)

by Claire Browning on December 10, 2009
Claire Browning

then there’s poster boy Mark Burton, shot in the leg by police and now an amputee, whose state-funded prosthetic leg rendered him sufficiently mobile to attempt murder on another prisoner.

Dear Mark Burton,

So sorry. It was of course Graeme that I meant.

Mrs Malaprop.

by Graeme Edgeler on December 10, 2009
Graeme Edgeler

I imagine Mark Burton, minister (and Mark Burton, All White for that matter) was more than a little miffed he shared a name with Mark Burton, insane killer.

by Barbara Browning on December 11, 2009
Barbara Browning

Being faced with the question by 'Sunday' as to whether Richard Lakich should be a recipient of a new heart, the initial 'knee-jerk' reaction was 'No!' But on reflection I have reached the same conclusion as you have - the man has done his time and he has been punished for the awful crime committed in his youth. Why punish him further? Why indeed should he be continuing to punish himself and, even more so, his son by making the decision he has, however admirable it might seem? If the Umbers family have forgiven enough for them agree that he should go for the operation, shouldn't he try to forgive himself now? And shouldn't we also?

by Claire Browning on December 11, 2009
Claire Browning

Graeme's referring to this Burton, whereas I was referring to this one.

by stuart munro on December 13, 2009
stuart munro

There are some decisions a healthy judiciary, and a healthy political system do not hurry to make, and perhaps this is one of them.

If Mr Lakich feels that his crime was so grave as to require that he forego another chance at life, it shows that he has come to a mature appreciation of the crime, and does not need to be punished.

The ACC law was made, if you remember, in response to criminals who became eligible for lump sum compensation. There is no profiteering in this case, and extending the ACC rule to this situation would be draconic.

There is quite sufficient uncertainty in the heart transplant process - availability of donor hearts, the possibility of rejection, and the possibility of death from surgical trauma - to leave the decision to the 'mandate of heaven.'

Were I Minister of Justice, I would not hurry to take such a mandate upon myself.

But we need to remember the calibre of our political appointees - They are mostly a species of impetuous ordnance consisting of a terrible bore with a big mouth, ie what are ordinarily described as loose cannons. We shall be lucky indeed, if they do not decide to dismember criminals and sell the medically useful pieces to defray their travel expenses.

by Claire Browning on December 14, 2009
Claire Browning

Sorry Stuart, you might've misunderstood.

I was not suggesting that ACC should somehow be extended to cover Lakich. That's a decision for himself and his medical team.

However, they're separate, but related, issues. It's very easy to defend the ACC argument, on a populist level at least, by reference to the Graeme Burtons of this world. But inevitably, the personalities involved and the circumstantial costs and benefits will vary, case by case. I thought Lakich was a good illustration of someone who's paid his price and, as you and others have said, someone who neither requires nor deserves further punishment; and nor does his little boy.

For example, the AA has submitted that an exception should be made for aggravated careless driving, which would otherwise meet the exclusion criteria for any such offender sentenced to imprisonment. Their argument is "people like us" -- generally law abiding people exceed the speed limit fairly often, and might be in jeopardy of such a charge if the worst happens -- the legislature surely can't intend to deny them ACC. While I'm not sure I'd find a blanket exclusion objectionable (following the Woodhouse Report's line of thinking), I really do have a bit of a problem with the AA argument, both because of its likely discriminatory effect, and its tendency to gut what is anyway a populist policy, by further shrinking the small pool of affected cases.

Because of the imprisonment threshold, offences that might be likely to give rise to injury in the course of their committal - common assaults, and driving infringements - are excluded.

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