Tension over three strikes law and a possible solution
March 19th, 2009 at 11:00 am by David FarrarThe Herald reports:
The Act MP who designed the proposed three strikes law says National has expanded it to include offences like bestiality in a “Machiavellian” attempt to make it look unworkable.
National has toughened the law by adding 20 crimes like bestiality, incest and acid throwing to the list of “strike offences” that could see a repeat offender sentenced to life imprisonment with a 25-year non-parole period.
But hardline Act MP David Garrett said many of the new offences arguably did not justify a life sentence and were possibly an attempt to undermine three strikes.
“It may be a Machiavellian move by National designed to sink the three strikes provision. Many will say incest, for example, while a deeply unpleasant offence, should not be a reason to send someone to jail for 25 years.”
Good to see there is agreement on that. But I don’t think it is so much designed to undermine three strikes, as that National is focused on the second strike – what offences should mean you do not get parole if you get a second conviction of over five years.
Justice Minister Simon Power said Act had actually agreed to the expanded list of offences.
Mr Power said the list was designed to fulfil National’s own parole policy, which would deny parole to those convicted of a violent offence punishable by five years or more if they had committed a similar offence before.
Mr Power said when three strikes was merged into the bill, “as part of that process Act offered to adopt our list of offences, and we accepted.”
The problem faced here is that you want the second strike (no parole) to cover a much wider range of offences than the third strike (life with no parole for 25 years at least) because the third strike is so severe.
I think there is a workable solution to this, that also overcomes some of the Bill of Rights issues around someone given a 25+ year sentence for an offence that normally has a maximum sentence of say 10 years.
I would change the third strike from life (with no parole for at least 25 years) to being the maximum penalty set down for that offence (with no parole if a finite term).
So what you would have at each stage
- Normal sentencing and normal parole
- Normal sentencing and no parole
- Maximum sentence and no parole
What are the maximum sentences for the various crimes that National wants included:
- Sexual violation – 20 years
- murder – life (so non parole of at least 25 years on 3rd strike)
- attempted murder – 14 years
- manslaughter – life (so non parole of at least 25 years on 3rd strike)
- wounding/injuring with intent to cause grievous bodily harm
- aggravated wounding/injury – 14 years
- aggravated assault – 3 years
- assault on a child – 2 years
- cruelty to a child – 5 years
- using a firearm against a law enforcement officer – 14 years
- committing a crime with a firearm – 10 years
- Compelling indecent act with animal – 14 years
- incest – 10 years
- acid throwing – 14 years
- robbery – 10 years
- aggravated burglary – 14 years
- kidnapping – 14 years
- indecent assault – 7 years
- attempted sexual connection with a family member who is under 18 – 7 years
- abduction for purposes of marriage or sexual connection – 14 years
This would still provide for very harsh penalties for the third strike, but would not treat murder the same as wounding. Take rape as an example.
The starting point for rape (off memory) set by the Court of Appeal is seven years. So a rape with no aggravating factors would get seven years and with parole the rapist would be out in four years and eight months.
Now if he raped again, the court might give him ten years for the second strike. And no parole means he would serve ten years – double the first strike.
And if he raped a third time, when it is an automatic maximun penalty of 20 years with no parole.
Of course he might get preventative detention also, but that is not guaranteed.
I think this would be a win win. ACT still gets a three strikes law and a major win. The Bill of Rights issues over getting 25 years for an offence set down in statute as having a maximum sentence of say 10 years are dealt with, and most importantly hardcore repeat offenders stay behind bars for much much longer.
Related posts:
- The revised Three Strikes Law
- No one would get a third strike!
- Three Strikes and the Max
- Reaction to Three Strikes
March 19th, 2009 at 11:15 am
Bloody typical of National to be so damn populist and not pass legislation for the sake of appeasing centrist voters. Such a shame we live in such a dumbass ignorant country where the general population are idiots.
Vote:March 19th, 2009 at 11:24 am
Unfortunately, rather than mitigating the worst effects of the proposed system, your proposal is more harsh than that currently proposed.
… with this exception – National promised life with no parole for second strike murder, so your suggestion of “murder – life (so non parole of at least 25 years on 3rd strike)” isn’t going to fly with them.
Those aren’t the crimes National wants included. Those are the Crimes ACT wants included with a couple of National’s proposed strike offences (but not all of them) added in. National didn’t want smacking, child cruelty, or aggravated assault on this list. ACT did.
[DPF: I do not understand how it is more harsh. 20 years for rape rather than life and no parole until 25 years is not more harsh]
Vote:March 19th, 2009 at 11:25 am
DPF…`Your compromise proposition seems reasonable and workable to me. The big thing is that there must be no Judicial Discretion.
Vote:March 19th, 2009 at 11:36 am
The problem of moral hazard remains. I don’t see treason or grand fraud on the list. You can’t cherrypick your justice. It’s still overly prescriptive and refuses to consider mitigating circumstances, which is what we pay judges for. Still unimpressed.
Vote:March 19th, 2009 at 11:37 am
Rodney can secure the future of ACT if he does the right thing here and tells Key to fuck off.
However I suspect Rodney has succumbed to the baubles of office and will agree with anything Neville Key has to say.
Rodney and ACT need to realise they are fast heading down the path of irrelevance, it is about time they made a stand on the issues that made people vote for them.
[DPF: How would Rodney get the law passed without John Key? Five votes out of 122 won't do it]
Vote:March 19th, 2009 at 11:41 am
It’s tough, take robbery for instance would you really lock someone up for 10 years for taking money from a roadside stall three times, 2 years maybe, but 10 ??.
Vote:I won’t even get into the arguement of whether as a country we can actually afford to imprison all of these offenders & how we manage them once they are in jail.
My preference would be a 3 strikes & no parole, say
1st offence – std sentencing.
2nd offence – std sentence, parole period halved.
3rd offence – std sentence, no parole.
March 19th, 2009 at 11:47 am
Nigel – that’s theft, not robbery. Theft isn’t proposed to be a strike offence.
Vote:March 19th, 2009 at 11:52 am
If Rodney wants to turn the ACT Party into a New Zealand version of the most intolerant parts of the Conservative wing of the US Republican Party, then he is on the right track with this illiberal crap.
But I suspect that for every Sarah Palin worshiping supporter he attracts, he will loose about six classical liberals.
Vote:March 19th, 2009 at 11:54 am
“# Compelling indecent act with animal – 14 years”
As weird and fucking strange as this is, its hardly what one would consider an “offense” justifying a lifetime sentance.
“Moral” crimes should have no place in this act.
What is the tories obsession with horse fucking anyway?
Vote:March 19th, 2009 at 12:00 pm
Let’s hope the third strike isn’t taking a short cut across some railway lines. According to the notices on the Wellington trains, the maximum penalty for this heinous crime is six months in prison and a $20k fine.
I’m neutral on a three strikes law. But I’d applaud any government that promised to go through all legislation looking to decriminalise things that shouldn’t really be illegal, and removing threatened penalties that are absolutely ludicrous.
Vote:March 19th, 2009 at 12:12 pm
davidp – I have no problem with decriminalising the act of crossing the railway lines – provided the estate of the deceased crosser can be made to clean the blood and teeth off the front of the locomotive, and pay the train driver’s counselling bills!
Vote:March 19th, 2009 at 12:15 pm
DPF: I would change the third strike from life (with no parole for at least 25 years) to being the maximum penalty set down for that offence (with no parole if a finite term). So what you would have at each stage
1. Normal sentencing and normal parole
2. Normal sentencing and no parole
3. Maximum sentence and no parole
IMHO Farrar’s suggestion (quoted above) is very good indeed – so simple that surely it only really requires a few sentencing guidelines to be tweaked?
Vote:March 19th, 2009 at 12:15 pm
Why are Manslaughter and “intent to murder” included in the list? Surely if someone doens’t intend to kill someone but does (this can include motor vehicle accidents or shooting somebody on your farm stealing your quad bike or in your gunshop robbing it at knife point) then they shouldn’t go to jail forever. Good idea in principle but unworkable with the police and justice system the way it is.
Vote:March 19th, 2009 at 12:22 pm
Ratbiter – I believe National intends to abolish sentencing guidelines.
Vote:March 19th, 2009 at 12:28 pm
Graeme – that’s right re sentencing guidelines. Labour enacted legislation to establish a sentencing Council, however National signalled pre election that it would not allow the establishment to proceed. Unfortunately the final procedures to appoint members to the Council were not taken before the election. We will not have sentencing guidelines in the near future. It’s a shame really – from what I have heard, a lot of work was done that would have added a lot. An environment sans sentencing guidlines gives rise to considerable inconsistency in sentencing, something I’m sure all people would agree is inappropriate.
Vote:March 19th, 2009 at 12:29 pm
I like the proposal from DPF. The gap is that you can then commit murder (strike one), murder (strike two), and then have sex with a horse (strike three), getting the maximum sentence for sex with horses. Not sure that is the intent. Perhaps the third strike should give you the maximum sentence across any of your three crimes?
Vote:March 19th, 2009 at 12:29 pm
All this in-fighting and puffery could be avoided, if, as baxter suggests, the judiciary just started using the sentences they have available more firmly. Which is the big problem in our limp-wristed country. There is no way to compell judges to exercise their judgement when allegedly protecting the public. The bias is toward the criminal and not just a little bit. Perhap Chris Finlayson, Simon Power and Judith Collins can get together and “wrestle” with this.
I also find it curious that there was a time when acid throwing was so prevailent they made a special sentence for it. What about toenail pulling? Dropping a 4L can of dulux on someone’s head? Slapping with a hot spatula?
Vote:March 19th, 2009 at 12:37 pm
Ratbiter>davidp – I have no problem with decriminalising the act of crossing the railway lines – provided the estate of the deceased crosser can be made to clean the blood and teeth off the front of the locomotive, and pay the train driver’s counselling bills!
Crossing railway tracks looks a hell of a lot safer than crossing the road, given the relative numbers of cars and trains. If tracks warrant that sort of law and penalty, then roads should warrant even more safety attention and a harsher penalty. We should be investing tens of billions of dollars building pedestrian over bridges over every street in NZ and locking people up for six months if they try and cross a road without using the over bridge.
But I’m interested in your idea that a dead person should pay counseling bills for the person who kills them. If a child ran out in front of a car, then would the parents be liable for the bill? It isn’t as if children have much in the way of assets to liquidate to pay for treatment.
Vote:March 19th, 2009 at 12:39 pm
PaulL – I think the beauty of the DPF scheme is that it avoids double jeopardy. If you do one murder, you do a murder sentence for it once. Do another crime, and you are still sentenced in accordance with the same sentencing for that crime as any other offender, just that your character (as evidenced by your previous convictions/Strikes) is taken into account (albeit automatically.)
But I hope that any further Strikes subsequent to a Third Strike would be subject to the same rule as the Third Strike…?
Vote:March 19th, 2009 at 12:39 pm
PaulL – bestiality is not proposed to be a strike offence.
Also, DPF’s proposal is that on the second strike, you get a normal sentence without parole. The normal sentence for murder is life imprisonment, so I don’t see that the person would get out, and I doubt they’d let the horses in…
Vote:March 19th, 2009 at 12:44 pm
davidp – Have you ever seen a train slam on the brakes and do a panic stop? It’s not like when you or I do it in our cars. A train driver has very limited ability to stand on the brakes and stop quickly if someone steps out in front of him. And absolutely NO ability to swerve and avoid them.
This is why the efforts to discourage people from stepping out in front of trains in the first place are so much the more extreme…
Vote:March 19th, 2009 at 1:01 pm
I understood from Garrett that ACTs list was the short one limited to violent offences….actually crimes that violate individual rights….National added more “offences” that diluted that violence factor.
For instance consentual adult incest and bestiality are not violent offences that violate the rights of an unconsenting other so are not crimes.What mindset thinks screwing your willing sister or Ned the family donkey is on a par with brutally killing someone?
National/ACT would do everyone a favour by defining once and for all what actions ARE crimes and what aren’t….clue….Crimes have an unconsenting victim other than ones self…..”Vices”,actions that are preformed for gratification and are potentialy self destroying do not.But that would require some philosophical thought being undertaken…..and it seems in NZ is not chic to be seen to base your politics on an ideology
Vote:March 19th, 2009 at 1:20 pm
As you now know the proposal doesn’t include petty theft but why bloody not?
These type of pathetic scumbags are the exact type of people a harsh penalty will deter.
And Nigel, I can assure you that the prison population will fall, not rise, under a harsh penalties for wrongdoers regime, particularly so if the prisons themselves are corrected to be what they were originally designed for, punishment.
Vote:March 19th, 2009 at 1:21 pm
And it’s a pity that this prick isn’t on his third strike.
Vote:March 19th, 2009 at 1:26 pm
James – bestiality is not on National’s list.
National’s pre-election promise was along the lines of “no parole fors erious repeat violent and sexual offenders”.
ACT’s list was only of violent offences, and they didn’t even include all of those. Offences like smacking, and assault with intent to injure were on the list, but it did not include attempted rape, aggravated robbery, paedophilia-related offences, etc. The Sensible Sentencing Trust’s list didn’t even include attempted murder!
Vote:March 19th, 2009 at 1:32 pm
>>Bloody typical of National to be so damn populist and not pass legislation for the sake of appeasing centrist voters. Such a shame we live in such a dumbass ignorant country where the general population are idiots.
To be fair, Centrist voters are generally tough on crime.
Vote:On the whole, they are not all in the centre on all issues.
They are likely to be on the right on crime but on the left with say health and education.
So whatever the reason, for this is, I don’t think it is likely to be appeasing centrist voters
March 19th, 2009 at 1:33 pm
If criminals had to serve their sentences consecutively instead of concurrently they would be in jail a damn sight longer. Could never understand why a person who commits more than one crime is does not have to serve time for each crime. Makes little difference whether the crime is burglary, or aggravated burglary when the sentence is served concurrently. Make sure every sentence has a value.
Vote:March 19th, 2009 at 1:46 pm
If you only serve a part sentence why not add the unserved part to any further offense regardsless of what it is.
the only issue is in what time period?
5yrs after end of first sentence would have been or10yrs or for the rest of your life.
Does this mean that after 3 strikes then you should always get the max sentence with no parole?
another option would be to give the say so to the victim or if they choose, their family as to whether you get parole.
They decide thereby empowering both the victim and society.
Much better idea and takes away the emphasis on the offenders rights.
personally agree that offenders should serve the sentences one after the other.
Vote:March 19th, 2009 at 1:57 pm
“I think this would be a win win. ACT still gets a three strikes law and a major win. The Bill of Rights issues over getting 25 years for an offence set down in statute as having a maximum sentence of say 10 years are dealt with, and most importantly hardcore repeat offenders stay behind bars for much much longer.”
I agree.
Vote:March 19th, 2009 at 2:30 pm
Yep, good work DPF. And it is nice to see that this is one of those times that RRM/Ratbiter is participating in reasonable, non partisan discussion; he is not so far gone as a liberal socialist as to support the “be nice to crims” and “wet bus ticket” justice that are among the reasons for our appalling problems today.
Rex Widerstrom, I think we understand each other on the broader issues. I think that this legislation is necessary, but I agree with you that other measures are necessary as well, relating to “broken windows” and neighbourhood safety and crime solving and police integrity.
Vote:March 19th, 2009 at 2:34 pm
Rebel Heart (115) 7 0 Says:
March 19th, 2009 at 11:15 am
“Bloody typical of National to be so damn populist and not pass legislation for the sake of appeasing centrist voters. Such a shame we live in such a dumbass ignorant country where the general population are idiots.”
In many ways that is a good comment, but I think that the Nats have misdirected their populism in this case, if populism is what it is. The overwhelming majority of NZ-ers want legislation like this, whatever the bleeding heart liberals in the media might say.
Vote:March 19th, 2009 at 2:44 pm
I may have misunderstood your proposal.
The current proposal might see:
Strike One: Six years for aggravated robbery, eligible for parole
Strike Two: Eight years for aggravated robbery, not eligible for parole
Offence Three: Six months for incest, after finding your father whom you’d never known and falling in love.
Your proposal seemed to be:
Same as above for strikes One and Two, then
Offence Three = strike three: 10 years for incest.
You descibed the third offence as resulting, automatically, in the maximum term. You also listed the maximum penalties of a number of offences, including some that could never result in a five year prison term, implying to me at least, that these maximums might be automatically imposed under your proposed alternative.
This isn’t what would happen under the proposal as now written. If you weren’t proposing that the third strike offence would automatically result in the maximum, but would only result in the maximum if a finite sentence of at least five years would otherwise have been imposed, then you’re right, your proposal is not more harsh.
Vote:March 19th, 2009 at 2:53 pm
Or you could accept what research tells us: mandatory sentencing does not work.
It’s just been imposed in WA for assaults on Police after a public rally (I loved the juxtaposition of signs abhorring violence with signs saying “hang all lawyers”) and senior barristers are trying to explain to the hyped-up crowd that it simply will not work.
Separation of powers exists for a reason, David. Unless you want David Garrett as your judge if you’re ever mistakenly accused of a crime, I’d suggest leaving the courts to do the sentencing.
Oh, and mandatory sentencing for incest between consenting adults?! It’s not an activity we want to promote, but is it really one for which we want to imprison? Where is National’s fast-waning commitment to personal freedom?!
Vote:March 19th, 2009 at 5:11 pm
Philbest: What is your measure of “reasonable” and “non-partisan” discussion, exactly? When I agree with you?
Vote:March 19th, 2009 at 5:27 pm
Philbest: “[Ratbiter] is not so far gone as a liberal socialist as to support the “be nice to crims” and “wet bus ticket” justice”
Indeed I am not.
Traits like those are something the Kiwiblog right loves to slander anyone offering a contrary view with, whether it is true or not. You will have seen this over and over again in your time.
I don’t know if this is because the Kiwiblog right is too emotionally overwrought to discuss anything without resorting to swearing and name-calling; or because they are too stupid to formulate a rational argument and therefore see the ad hominem as the most effective way to “win” the argument. Hey, it worked alright at Primary School after all!
I have always felt you are a cut above the Kiwiblog right in that respect Phil
Vote:March 19th, 2009 at 5:36 pm
Exactly, Rex exactly.
And just to stir the pot, I notice that female genital mutilation, which carries a maximum term imprisonment of 7 years, is NOT a three strikes offence.
Cut three penises off and you go to jail for life, (section 188 of the Crimes Act, wounding with intent to injure), but cut three clitorises off and the most you get for the third offence is 7 years.
Vote:March 19th, 2009 at 9:08 pm
Excellent points Rex. I’m still quite staggered that “Compelling indecent act with animal” gets three times the maximum sentence as Cruelty to a Child…. wow so we value our children that much less than animals?
Vote:March 19th, 2009 at 9:52 pm
Jarbury – it’s not about protection of the animal, it’s about the protection of the person being compelled. There is the law of rape to deal with forced sex involving penile penetration, there is sexual violation for other forced penetration (forced anal, broom sticks etc.), and there compelling indecent act with an animal not where you are forced against your will to have sex with a human, or a broom stick, but where you are forced against your will to have sex with an animal.
Cruelty to a child is an offence for instances of cruelty where a more serious offence doesn’t apply. Stabbing a child is cruel, but you’d be charged with attempted murder or wounding for doing so. Sexual offending against children is obviously cruel, but you’d be charged with that, etc.
If you want to compare treatment of children re cruelty, and animals, compare the cruelty provisions in the Crimes Act (5 years’ imprisonment) with those in animal welfare legislation (six months, or 3 years if the wilful ill-treatment causes the animal’s death).
Female genital mutilation is a separate crime even when done with fully-informed freely-given consent. There is nothing to stop a charge of wounding with intent being laid for FMG if the circumstances warrant it.
Vote:March 19th, 2009 at 11:07 pm
When I think of Child Cruelty the Nia Glassie clothes-dryer incident comes to mind…. clearly other crimes were also committed, but if that had been the only one then I would have hoped for more than just a 5 year max sentence.
Thanks for clearing up what the “compelling” meant.
Vote:March 20th, 2009 at 3:23 am
It’s interesting to watch the dynamics of the coalition agreement in action.
Vote: