A classic case for the three strikes law

November 2nd, 2010 at 8:57 am by David Farrar

The Herald reports:

The man who murdered Good Samaritan Austin Hemmings in central Auckland spent eight years in an Australian jail for stabbing and killing his estranged girlfriend.

He was also jailed in New Zealand on three separate occasions for knife incidents dating back to 1987.

Under , his last conviction would have been for the maximum sentence without parole. This happened in 2004, so he would not have been out in 2008 to kill Austin Hemmings.

Instead in 2004 he only got sentenced to two years and four months, despite this being the third time he has actually stabbed someone with a knife. I tend to think stabbing someone with a knife should get attempted murder unless there are strong reasons against.

Sadly Brown may get released again on parole (and I’d love to know if he got parole for his earlier crimes). Under three strikes he would now be facing life without parole which is entirely appropriate for someone who has killed two people, and taken part in a total of five knife attacks. He is is way beyond rehabilitation, and it is a tragedy Austin Hemmings paid the price.

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45 Responses to “A classic case for the three strikes law”

  1. BeaB (2,104 comments) says:

    He has to be locked up forever.

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  2. starboard (2,510 comments) says:

    it is a candidate for the death penalty..it has no redeeming features and it is past rehabilitation. It must be put to death immediately.

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  3. wreck1080 (3,862 comments) says:

    One thing annoys me – I believe a defendants criminal history should be available to juries.

    If he had not have pleaded guilty, the jury would have been completely oblivious to these previous crimes.

    This guy carries knives, and clearly is quite happy to use them on people. Surely that would have been relevant to the court case if it had gone ahead.

    This guy should never leave jail, with respect to the 2 people he has killed, and others that he has knifed.

    [DPF: Actually in this case they had decided to allow his previous offences to be admitted as they were similar. This is probably why he pleaded guilty]

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  4. queenstfarmer (768 comments) says:

    Let’s hear from the anti-3 strikes crowd on this one.

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  5. MikeNZ (3,234 comments) says:

    I’d like to know from the Police and Prisons how many more there are out there like him?
    How many plea bargainer down to lessor charges?

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  6. kowtow (8,136 comments) says:

    This is a classic case of our weak sentencing and soft approach to crime.

    I don’t know what his immigration status is but the Aussies deported him ,why did they let him in with convictions in ’87? I ask because all these things are related.

    He awaits sentencing for murder, it’s the gallows he should be facing.

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  7. adze (2,057 comments) says:

    Seeing the reactions of existing inmates to his latest victim he may find it particularly difficult inside this time.

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  8. Nick R (504 comments) says:

    Good post, but this case raises a question which the 3 strikes provisions of the Sentencing Act don’t address – namely, what happens about overseas convictions. As I understand it, the 3 strikes rules only apply to offences in NZ – I don’t think the Courts here can take account of offences overseas as they don’t qualify. Brown’s last conviction was in Australia. So even if the 3 strikes regime had been in place at the time, it still wouldn’t have counted.

    I’d like to be wrong about that if anyone has made a more detailed study of the Sentencing Act…

    [DPF: The Aussie one would not count I think, but his third strike would have been in NZ in 2004, and would have meant he was in jail still in 2008]

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  9. Inventory2 (10,261 comments) says:

    Agree wholeheartedly DPF; this guy would have been the ideal poster boy for David Garret’s campaign, if he had been able to name him. We can only hope that the Parole Board never releases him, which, at 47, is not beyond the realms of possibility. Alternatively, he could double bunk with Graeme Burton or William Bell …

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  10. the bird is the word (69 comments) says:

    I believe a defendants criminal history should be available to juries.

    Ever heard of a right to fair trial?

    This guy carries knives, and clearly is quite happy to use them on people. Surely that would have been relevant to the court case if it had gone ahead.

    Of course evidence that “this guy” carried knives (if he did) is relevant and would be admissible in court. But allowing prior convictions to be told to the jury? That is an outrageous idea. Innocent until proven guilty. If you tell a jury “this guy has murdered before”, the jury has already decided he’s guilty before the case is even heard.

    I’m a firm believer in the three strikes law. But also, in order for that to work properly, I believe in the right to a fair trial.

    [DPF: You don't know the law. The Judge ruled his previous offences were admissible as they were so similiar]

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  11. bhudson (4,736 comments) says:

    “One thing annoys me – I believe a defendants criminal history should be available to juries. ”

    wreck1080, I don’t disagree with the sentiment, however it could raise the prospect of people being unjustly convicted of a current charge because they had prior history and so the jury were influenced by that as much or more as by the facts as presented to them.

    I suspect that is the rationale (no doubt expressed in somewhat better terms) for the current rules. If really does need to remain that way

    I do agree with the 3-strikes approach, but would probably agree with Rex W that there really should be more programmes and initiatives to prevent people heading into serious 3-strike criminal behaviour in the first place. Those programmes should be an ‘as well as’ thing, not instead of 3-strikes.

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  12. starboard (2,510 comments) says:

    Ever heard of a right to fair trial

    ..ever heard of the right to walk the streets without being stabbed by this sorta scum? I think in this losers case the evidence is overwhelming…maybe he could be bailed to your house?

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  13. the bird is the word (69 comments) says:

    ever heard of the right to walk the streets without being stabbed … ?

    No, never have heard of that. Where’s that in the Bill of Rights Act?

    As I say, I agree this man should have been kept in prison – under the three strikes law – but in each of those three cases he should have a fair trial. Allowing prior convictions into court is not consistent with a fair trial.

    [DPF: You're wrong - the test is whether the prior convictions are relevant - in this case they were]

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  14. starboard (2,510 comments) says:

    No, never have heard of that. Where’s that in the Bill of Rights Act

    ..that be right…your sort only interested in the rights of crims. Are you a defence lawyer by any chance ?

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  15. alex Masterley (1,507 comments) says:

    I agree with Bird.
    Every-one is entitled to a fair trial.
    However, if found guilty…
    This guy will go away for life with a non-parole period of at least 17 years, unless he is given Preventative Detention.
    Even if he has any entitlement to parole in the future, which i doubt, i think you will find the parole board will consider that this guy will never be safe in society and will never be released.

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  16. andrei (2,536 comments) says:

    I think this is relevant to previous comments

    Crown prosecutor Kevin Glubb told the hearing on October 14 that Brown served eight years for killing his girlfriend and was then deported.

    Mr Glubb argued that the killing was relevant to Brown’s attack on Mr Hemmings in downtown Auckland in September 2008 because Brown used a large kitchen knife to attack his girlfriend and had aimed for her upper left chest – the same spot in which Mr Hemmings was stabbed.

    Had Brown’s trial gone ahead, the jury would have been told of his Australian manslaughter conviction, and at least three other knife attacks by him in New Zealand.

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  17. the bird is the word (69 comments) says:

    @andrei

    I didn’t know that information. Thanks. In some cases, if the crime is committed in a similar way (for example, whenever a burglar burgles a house they leave the taps running) then it is possible for prior convictions to be admissible. I guess in this case, the same principle applied.

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  18. Nick R (504 comments) says:

    Andrei – This is what lawyers call similar fact evidence – an exception to the rule that juries are not told about prior convictions. There are other exceptions too. But the rationale for similar fact evidence is that there are so many similarities between the offence which is being tried and previous offences that it ought to be considered by the jury as evidence probative of guilt. But it is not the prosecutor’s call as to whether this evidence gets to the jury – the Judge decides that.

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  19. wreck1080 (3,862 comments) says:

    It is naive to think juries are so stupid to think someone is guilty just because they committed the same crime previously. Other evidence is also presented such as witness accounts and forensic evidence. So, every bit of information is needed to prove beyond all reasonable doubt.

    Probably, my biggest concern is that corrupt cops will simply plant evidence at those known to commit certain types of crimes.

    Those with serious criminal histories will just need a higher level of evidence to prove they didn’t do a crime.

    With murder cases, you have to know what is in the mind of a person at the time of the killing. This is very difficult without knowing something about them.

    Someone with a decent history of criminal offending should lose the right to keep their past offending secret.

    There might be a few false convictions, but would be outweighed by the number proper convictions that might not otherwise have occurred. This is an acceptable trade-off to me.

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  20. the bird is the word (69 comments) says:

    Those with serious criminal histories will just need a higher level of evidence to prove they didn’t do a crime. Someone with a decent history of criminal offending should lose the right to keep their past offending secret.

    Isn’t the whole point of ‘three strikes’ so someone with a serious history of criminal offending doesn’t have the chance to commit another offence?

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  21. pollywog (1,153 comments) says:

    Let’s hear from the anti-3 strikes crowd on this one.

    if he knew he was going away forever he woulda made sure he killed the guy and not just stabbed him cos he woulda had nothing to lose.

    you can’t rationalise with a murderous psychopath in berserker mode.

    [DPF: He would not have been out of jail after his third strike to stab him even once]

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  22. Lance (2,619 comments) says:

    The piece of shit that stabbed ACC worker Janet Pike to death had a string of convictions for stabbing people. All the previous sentences were either community work or very short prison sentences… seems nothing changes.

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  23. queenstfarmer (768 comments) says:

    you can’t rationalise with a murderous psychopath in berserker mode
    That’s right. Hence the solid rationale for the 3 strikes law – commit a grevious violent crime 3 times, you’re out.

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  24. pollywog (1,153 comments) says:

    Hence the solid rationale for the 3 strikes law – commit a grevious violent crime 3 times, you’re out.

    …and in this case there prolly woulda been one more dead innocent who was lucky to have only been stabbed cos the offender knew he wasn’t going away forever.

    if he’d known he was gonna get life with no parole it woulda stood him in better stead for his prison rep to go down for life for murder than just another stabbing.

    and seeing as how you can’t rationalise with a psycho, i imagine they don’t give shit if they’re struck out for a short lag or life.

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  25. Chuck Bird (4,821 comments) says:

    That’s right. Hence the solid rationale for the 3 strikes law – commit a grevious violent crime 3 times, you’re out.

    Thanks to ACT

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  26. backster (2,139 comments) says:

    Its refreshing to read of a Judge who acknowledged the similar acts rule. Generally of late they have excluded compelling evidence of similar acts on the ludicrous grounds that it may prejudice the jury against the perpetrator exactly what relevant evidence is meant to do.

    I wonder how much Lawyer HART gets for spinning this open and shut case out for two years.

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  27. kowtow (8,136 comments) says:

    Pollywog @1024; Totally contradictory statement. On the one hand claiming the crim can rationally decide to kill cos he knew the consequences of his crime and then claiming you can’t rationalise with a “psychopathic berserker”.Go figure.

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  28. queenstfarmer (768 comments) says:

    Pollywog, so you’re saying that these guys are irrational pyschos in beserker mode yet they’d cunningly rationalise the 3 strikes law to acheive “better stead for his prison rep”? Yeah right.
    [edit: what kowtow said]

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  29. Graeme Edgeler (3,280 comments) says:

    Under three strikes, his last conviction would have been for the maximum sentence without parole.

    Only if all the previous knife convictions were for strike-eligible offending. And they weren’t.

    He wouldn’t have got the maximum sentence without parole; instead, his 2004 conviction would have seen him sentenced to 2 years 4 months without parole – and still out in time to commit the 2008 murder.

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  30. MikeNZ (3,234 comments) says:

    Thanks for that Graeme.
    Seems to me the three strikes law should apply to all offences.

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  31. tvb (4,313 comments) says:

    The 3 strikes legislation not have saved the victims life. Against the background of his prior offending I would not expect him to ever receive parole.

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  32. andrei (2,536 comments) says:

    Where does preventative detention fit into all of this?

    After his last offense why wasn’t he eligible for that?

    Anyone know

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  33. queenstfarmer (768 comments) says:

    Only if all the previous knife convictions were for strike-eligible offending. And they weren’t.

    They weren’t? How so? (thanks) Might be that we need to tighten up the law up bit.

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  34. Graeme Edgeler (3,280 comments) says:

    They weren’t? How so? (thanks)

    The Herald lists his previous as:

    LIFE OF VIOLENCE

    1987: Pauesi Brown attacks a man in Avondale, stabbing him in the thigh and upper chest. He is sentenced to one year in prison.
    1989: Brown attacks two people in an Auckland boarding house, threatening them with knives. He is sentenced to one year and four months in prison.
    1992: Brown attacks and kills his estranged girlfriend with a knife in Australia. He is charged with murder and is convicted of manslaughter and sentenced to eight years in prison.
    2004: Brown attacks a man with a knife in his car in West Auckland. Sentenced to two years and four months in prison.
    2008: Brown attacks and kills Austin Hemmings in central Auckland. He pleaded guilty yesterday to murder, and is to be sentenced next month.

    1987 – wounding with intent to injure – a strike offence
    1989 – no offence named, offending described as “He kicked open a locked door and threatened the pair with two knives.” – perhaps assault with a weapon (not a strike), or threatening to kill/do grievous bodily harm (also not a strike)
    1992 – in Australia – not a strike
    2004 – wounding with reckless disregard – not a strike offence, (I think).

    My apologies for misleading y’all. Looking over it, not only was this guy not on his third strike, he was probably not even on his second strike.

    I had thought his 2004 conviction would be strike eligible, but on closer reading of the sentencing and parole reform act, it appears not.

    The list of strike offences includes:

    section 188(2) (wounding with intent to injure):

    Section 188(2) of the Crimes Act states:

    Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.

    It is quite clear that the list of strike offences includes wounding with intent to injure under s 188(2), but not wounding with reckless disregard under s 188(2), despite the offences having the same penalty.

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  35. Graeme Edgeler (3,280 comments) says:

    [DPF: He would not have been out of jail after his third strike to stab him even once]

    As I note above, the guy didn’t have three strikes. Indeed, it appears that he only had one.

    That one would have been enough to make this life without parole, but not enough to stop the murder he committed here.

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  36. queenstfarmer (768 comments) says:

    Thanks Graeme. Stuff reports the 2004 conviction was “wounding with intent to injure”: http://www.stuff.co.nz/national/crime/4296795/Good-Samaritans-murderer-had-killed-before

    So (assuming the Stuff report is right…) that is 2 strikes. The question is the 1989 offence. Could it not have been aggravated robbery / burglary (which is a strike offence)?

    In any case, the guy would now have 3 strikes and would have less opportunity to go back for round 4.

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  37. Graeme Edgeler (3,280 comments) says:

    So (assuming the Stuff report is right…) that is 2 strikes.

    Indeed, although my guess would be that the Herald would be correct in its claim that it was wounding with reckless disregard – it’s just a lot more specific. Calling a wounding with reckless disregard a wounding with intent to injure is a mistake I can easily see someone making. The opposite seems far less likely.

    Could the ’89 offence have been an aggravated robbery/burglary? I doubt it:

    1. I think they would have said if it was an aggravated robbery.
    2. What constituted a burglary (and hence an aggravated burglary) became a lot broader a few years ago (which is how the Waihopai 3 could be charged with burglary). Back in 1989 it was pretty much breaking and entering to commit theft. That doesn’t seem to be what the charge entailed.

    The guy doesn’t need 3 strikes. If you’ve even one strike, a murder gets you life without parole.

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  38. Scott (1,761 comments) says:

    I would bring in capital punishment. It would save us a lot of murders, particularly because there are no problems with recidivism.

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  39. kowtow (8,136 comments) says:

    One year for stabbing a guy in chest and leg,who said judges were in touch.?

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  40. Graeme Edgeler (3,280 comments) says:

    I would bring in capital punishment. It would save us a lot of murders, particularly because there are no problems with recidivism.

    Do you know how many repeat murderers we’ve had in New Zealand? Something like two or three ever.

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  41. Chuck Bird (4,821 comments) says:

    It is quite clear that the list of strike offences includes wounding with intent to injure under s 188(2), but not wounding with reckless disregard under s 188(2), despite the offences having the same penalty.

    Thanks for that Graeme. The act obviously needs amending. Wounding with reckless disregard is obviously a serious violent offence. I wonder why it was left out. Does anyone know?

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  42. pollywog (1,153 comments) says:

    On the one hand claiming the crim can rationally decide to kill cos he knew the consequences of his crime and then claiming you can’t rationalise with a “psychopathic berserker”.Go figure.

    let me break it down for you brainiac.

    A psycho, if they know they’re on 2 strikes and got nothing to lose, can rationalise their own fucked up thoughts and come out in some weird space that says ‘fuck it i’m gonna kill anyway’.

    You nor i cant rationalise them out of that if they’ve got it in their heads thats how its gonna go down and are in berserker mode.

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  43. kowtow (8,136 comments) says:

    Judging by the standard of pollywogs comment above I reckon he/she has a PHD in psychology from Waikatoooooo.te he he.

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  44. pollywog (1,153 comments) says:

    Chur bo…i mean, it’s all very well pontificating from the safety of home over the internet

    but if some p head with a knife comes for you. Ask him if he’s got any strikes against him, then tell him what a fuckwit he’s being and how fucked up his life is gonna be if he stabs and kills you.

    …see if it’ll make a difference.

    Me, im either gonna take the knife off him and scar him up something chronic or i’m gonna do a runner, depends who’s with me at the time.

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  45. Jimbob (641 comments) says:

    How many more of these scum are out there? I would say plenty. We should have had the three strikes law decades ago, so all these parasites would be behind bars.

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