Labour will repeal three strikes

October 13th, 2011 at 10:00 am by David Farrar

The Herald reports:

A government would be likely to ditch the three-strikes law for repeat offenders, a controversial policy the party vehemently opposes and says is not working.

The three-strikes regime was passed into law last year, making it mandatory for judges to impose harsher sentences on repeat criminals convicted of one of 40 violent or sexual offences.

An offender receives a normal sentence and a warning for strike one, a sentence without parole for strike two, and the maximum sentence for that offence, without parole, for strike three.

Well that should make it easier for people. Labour is campaigning to have repeat rapists and bashers spend less time in jail.

Since was passed, I’ve been noting the number of criminals appearing in court who have a long record of violent or sexual crimes, and reflecting how if had been in place previously then they would not have been able to commit their latest homicide, rape or bashing.

I suspect this is the last election at which Labour will pledge to abolish three strikes. They can do so, because the public has yet to see it fully implemented. But in a couple of years probably a Judge will send some thug with a massively long list of crimes away for the maximum sentence without parole, and it will be more popular than toast. Once that has happened no political party will dare pledge to abolish it.

So as long as Labour do not get to form Government in 2011, I think three strikes will be safe for good. This is their last chance to repeal it.

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168 Responses to “Labour will repeal three strikes”

  1. Monty (962 comments) says:

    Labour’s daily confused and unauthorised policy release as they scramble to be all things to all people.

    But this is strange – we (the law abiding public) like the fact the repeat offender scum get locked up. Stupid Labour -

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  2. Lee01 (2,171 comments) says:

    The Nats should really hammer this during the election. Nothing worse than looking soft on crime.

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  3. Lance (2,444 comments) says:

    Someone commented on the Rena thread that the ship couldn’t have been more perfectly steered onto the reef if they tried.
    Looks like Labour are in a political sense doing the same.

    They couldn’t fuck up their campaign any better than they are trying now.

    Well done

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  4. unaha-closp (1,111 comments) says:

    Will they make it retroactive?

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  5. Scott Chris (5,875 comments) says:

    Good. It’s a stupid populist prescriptive piece of junk.

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  6. Chuck Bird (4,673 comments) says:

    “The Nats should really hammer this during the election. Nothing worse than looking soft on crime.”

    And they should thank ACT for initiating this legislation. This is another reason why a ACT makes a far better coalition partner than the Maori Party. If there is no ACT in 2014 there is a good chance there will a Labour led government for a very long time.

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  7. awb (301 comments) says:

    We probably shouldn’t have based a central plank of our justice system on a misinterpreted baseball slogan anyway.

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  8. Chuck Bird (4,673 comments) says:

    It is Three Strikes and the Max

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  9. nasska (10,636 comments) says:

    Chuck Bird

    It’s a pity that the movers & shakers running ACT hadn’t put a bit of thought into the likely reaction from the voters when they installed John Banks as the candidate for Epsom. In that one move they probably did more to deliver NZ to the socialists than the combined efforts of every Labour government.

    Should any part of ACT survive November they would do well to consider that people DO care about who represents them at least as much as the party they represent.

    Politics 101. Souffles seldom rise multiple times & the public detests recycled wankers.

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  10. Lee01 (2,171 comments) says:

    Chuck, I agree. Though they look like a train wreck at the moment, I’m going to bite the bullet and party vote ACT.

    After the elction though, they need to seriously re-think their strategy, their ideology and their leadership.

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  11. Elaycee (4,300 comments) says:

    nasska says: “Politics 101. Souffles seldom rise multiple times & the public detests recycled wankers.”

    Brilliant! :D

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  12. Ed Snack (1,734 comments) says:

    Scott and awb, it’s hardly the central plank of our justice system, but it is a specific policy aimed at a certain small sub-group of repeat mostly extremely violent offenders. In what way is it “populist prescriptive piece of junk” ?

    The public, rightly or wrongly, was unhappy with the concept of offenders being freed early to continue their offending, the public in this case has far more sympathy for the victims than the offenders. Quite why the liberal left side of politics continues to prefer to side with the offenders against the general populace, and supports the offenders ability to assault people is one of life’s little mysteries. Probably a result of identity politics taken to an illogical extreme and this of course explains the same peoples’ rabid support for enfranchising criminals.

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  13. Chuck Bird (4,673 comments) says:

    “Though they look like a train wreck at the moment”

    I must ask why? Could be because the Herald invents stories and arranges a misleading multi question pol to mislead the public.

    The Herald invented a story that the so called all powerful ACT board was considering lowering Don’s position on the list.

    The following is from a ACT press realise, “Mr Simmons said Ms Isaac had the unanimous support of the Party Board, as did Leader Don Brash and all the candidates.”

    One thing I am sure of is that Don Brash will led ACT long after Goff is rolled. How long do you think he will last after Labour losses badly?

    Good on you for giving your party vote to ACT.

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  14. Lee01 (2,171 comments) says:

    Chuck,

    They seem to lack focus. Brash says one thing. Banks says another. They started a campaign on Treaty issues, then promptly dumped further newspaper ads when it became too controversial. And I’m just not sure than Banks was really the right candidate. I like the guy, and agree with much of what he belives. I hope your right about the Epsom Herald Poll.

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  15. Scott Chris (5,875 comments) says:

    Ed Snack says:- “In what way is it “populist prescriptive piece of junk” ?”

    I believe it is populist because it panders to the dissatisfied sector of the population who do not realize how difficult the business of justice is, and howl howl with outrage whenever an offender reoffends without having the ability to truly analyse the real systemic failure. “Three Strikes” is a gimmicky bandaid.

    It is prescriptive because even though there is room for interpretation within the legislation, it lessens a judges power to weigh up a case based on more thorough an established formulae to determine justice and culpability.

    Certainly there is room for stiffer sentences to prevent harm to society, but three strikes is a very blunt instrument in deed. That is why I believe it is junk.

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  16. Raging Glory (45 comments) says:

    All the parties are promoting evil as good. That is why I don’t vote anymore. A plague on all their houses.

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  17. nasska (10,636 comments) says:

    Scott Chris

    “Three Strikes” has disturbed almost as many electrons on this forum as abortion & sodomy. That said, even if it is a blunt instrument, it would not have seen the light of day had the judiciary not deliberately ignored the public’s desire for protection from violent offenders.

    The ‘revolving door’ policies of the past 30 odd years didn’t work. Let’s give this a reasonable trial period.

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  18. Lance (2,444 comments) says:

    The trouble is this Scott

    The theory is all very nice but too many see pieces of shit killing someone whom have some fucking ridiculous number of assault offenses to their name.
    This is a personal issue for me as a good friend of ours was stabbed to death by someone who had LONG history of stabbing several innocent people and did a total of 18 months jail time during this out of control rampage.

    The judges were shit heads – end of fucking story.

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  19. kiwi in america (2,434 comments) says:

    Scott Chris
    Its not a gimmicky bandaid. The experience in many US states is that 3 strikes laws work – they keep violent criminals off the streets. I’m sure you’ll bleat on about high incarceration rates in the US but guess what – a healthy majority of voters here prefer safer streets and homes over some liberal feel good notion of having Dutch and Scadanavian hotel like pseudo-prisons and lower incarceration rates. The significant reductions in violent crime statistics in the US over the last 15 years show that longer sentences and stricter parole rules do work.

    NZ voters are no different. Labour is on a hiding to nothing with this PC foolishness. David is right. 3 strikes will be baked into NZ’s criminal justice cake by the time the 2014 elections roll around and Labour’s new leader will not be so quick to bend to the wishes of its wooly headed progressive wing of the party.

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  20. Scott Chris (5,875 comments) says:

    nasska says- “the judiciary not deliberately ignored the public’s desire for protection from violent offenders.”

    Yes I agree. It is plain to see when F E Smith defends the status quo, how conservative the whole system is. Certainly the judiciary resisting change, just as teachers and everybody else resists change, is part of the problem.

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  21. Scott Chris (5,875 comments) says:

    Lance says:- “a good friend of ours was stabbed to death by someone who had LONG history of stabbing several innocent people”

    Yes there are some complete assholes out there who deserve to never see the light of day. My solution to that, also based on what nasska said, would to be to make Judges more *accountable* for their decisions.

    You’d soon see them taking a far more conservative approach to their sentencing. But the howling of the Judges at this idea would be very loud indeed.

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  22. tvb (4,200 comments) says:

    For you to think this is having a deterrent effect for serious offending is laughable. What we could see is people being locked up for 14 years for a aggravated robbery of pineapple lumps from a dairy. Believe me people have been charged for that.

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  23. Scott Chris (5,875 comments) says:

    KiwiInAmerica:- “The experience in many US states is that 3 strikes laws work”

    Maybe, but it has also imprisoned many for life who do not deserve it. To take an extreme example, if you were to execute anyone who committed a violent crime of any sort, that would work like a charm. Wouldn’t be fair though.

    One idea worth looking at is to privatize the judiciary to over come conservatism. Just explore the idea, mind you.

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  24. Bob R (1,336 comments) says:

    ***The significant reductions in violent crime statistics in the US over the last 15 years show that longer sentences and stricter parole rules do work.***

    Indeed. Freakanomics’ Steve Levitt again.

    Levitt, Steven D. (Winter 2004). “Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not”. Journal of Economic Perspectives 18: 163–190.

    http://pricetheory.uchicago.edu/levitt/Papers/LevittUnderstandingWhyCrime2004.pdf

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  25. RRM (9,435 comments) says:

    Scott Chris –

    The only difficulty that this leftie has with talking of recidivist crime as a “systemic failure” is that you need two things before you get recidivist offending:

    (1) A system that enables recidivism
    (2) Dirty sh!t bags who choose to commit crime again and again

    So this leftie is pretty much right behind National / Act on the 3 strikes!

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  26. Lee01 (2,171 comments) says:

    @ Raging Glory

    All the parties are promoting evil as good. That is why I don’t vote anymore. A plague on all their houses.

    I have to admit I am moving in the same direction. I will vote this time around, but for the first time in my life I am thinking of not bothering after that. As you say, all of them promote evil to some degree or another.

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  27. Scott Chris (5,875 comments) says:

    RRM says:- ” So this leftie is pretty much right behind National / Act on the 3 strikes!”

    Well fair enough. Supporters of “three strikes” may all be taking a more practical approach than I, given the intractable nature of “The Machine” as a conservative institution.
    I prefer to barrack for more substantial change, futile though that may be.

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  28. Murray (8,838 comments) says:

    Ian Lees-Galloway also annouced to his facebook echochamber this morning that Labour will be closing all the one man police stations.

    apprently the rural community can go screw itself for not voting labour in the last election… or ever.

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  29. Nookin (3,034 comments) says:

    What evidence does Labour rely on to say the Three Strikes is not working? Recent reports suggest serious crime is down.

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  30. Paulus (2,499 comments) says:

    We all know Labour light on Criminals – so what’s new ? This just confirms it.

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  31. kiwi in america (2,434 comments) says:

    Scott Chris
    The numbers of criminals wrongly imprisoned/executed are a minute percentage of those incarcerated. This is a common soft-on-crime liberal hoary chesnut raised to object to 3 strikes laws, longer sentences and stricter parole conditions. Modern technology and the widespread use of DNA has cut down the numbers of wrongful convictions.

    Remember also that the federalist system in the US devolves the law making ability for most crimes to the States so the vast majority of criminals even violent ones are tried at the city and county level under relevant State criminal statutes. This makes law enforcement a much more sensitive issue for politicians and in many juristictions, tougher sentences are real vote winners – voters support stricter laws even knowing that it may result in a tiny number of wrongful convictions. They see that as the price to pay for safer communities. Only in heavily liberal areas like California and Vermont is there a preponderence of voters who think like you and the pressure for 3 strikes laws is lower. That said even in liberal CA, stricter, longer sentences and 3 strikes laws are common.

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  32. Weihana (4,496 comments) says:

    Ed Snack (520) Says:
    October 13th, 2011 at 11:10 am

    “Quite why the liberal left side of politics continues to prefer to side with the offenders against the general populace, and supports the offenders ability to assault people is one of life’s little mysteries.”

    What’s more likely, that those on the left think it’s ok if people get violently assaulted or that you are dishonestly representing their argument? And if you are unable to understand the opposing argument accurately how much confidence can be placed in your own position?

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  33. David Garrett (6,372 comments) says:

    Great News! The vertically and follicularly challenged Mr Cosgrove has actually come out and SAID Labour would repeal three strikes! Even I didnt think they would be that dumb….

    Remember the hysterical predictions from Workman and his mates that the prison population would triple or even quadruple because of 3S? Here we are 18 months later…and the prison population – along with the crime rate is DOWN! I have asked Mr Workman in a private e-mail to explain the gross disparity between his supposedly informed prediction and what has actually happened…..in the words of the late Brother Ralph of Edmund Campion College (1974) “Silence was the stern reply….”

    Come on Kim! I know you surf here….Forget about why the crime rate has dropped since the introduction of 3S; that could and probably is for a number of reasons: but why isn’t the prison population taking off exponentially like you claimed it would? Will your explanation be the same next year?

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  34. Weihana (4,496 comments) says:

    Lance (948) Says:
    October 13th, 2011 at 11:35 am

    “This is a personal issue for me as a good friend of ours was stabbed to death by someone who had LONG history of stabbing several innocent people and did a total of 18 months jail time during this out of control rampage.”

    “The judges were shit heads – end of fucking story.”

    Or… they applied the law as written regardless of whether it was to your satisfaction. The reality is that the law has been inadequate at dealing with extreme violence so why is that the judge’s fault?

    Personally I don’t see why an extremely violent person can’t be sent away for a long time for one strike, let alone three. We should also have degrees of murder and if you murder someone in cold blood without mitigating circumstances then the presumption should be life without parole. But we still need judicial discretion and I’m not confident that the “manifestly unjust” part of the three strikes legislation really gives enough judicial discretion and in time I think it is likely to lead to injustices because “manifestly unjust” is such a high threshold to meet.

    The government appears to have passed three strikes because it’s easy to sell. It’s simple and to the point whereas actually doing the hard work of really reforming the system to give better sentencing guidelines in line with community expectations would not be as easy to sell to the public.

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  35. David Garrett (6,372 comments) says:

    I see high school is out…Uni next year Weihana?

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  36. stephen (4,063 comments) says:

    but why isn’t the prison population taking off exponentially like you claimed it would?

    What was Kim’s timeframe? This has been said by others – there hasn’t really been time to see 3S make a big impact yet, assuming 3S only takes into account crimes committed after the legislation came in – I forget.

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  37. Weihana (4,496 comments) says:

    kiwi in america (1,470) Says:
    October 13th, 2011 at 11:57 am

    “I’m sure you’ll bleat on about high incarceration rates in the US but guess what – a healthy majority of voters here prefer safer streets and homes over some liberal feel good notion of having Dutch and Scadanavian hotel like pseudo-prisons and lower incarceration rates.”

    So why does the United States have an intentional homicide rate five times that of Sweden and the Netherlands?

    http://en.wikipedia.org/wiki/List_of_countries_by_intentional_homicide_rate

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  38. backster (2,076 comments) says:

    TVB “What we could see is people being locked up for 14 years for a aggravated robbery of pineapple lumps from a dairy. Believe me people have been charged for that.”

    From memory Aggravated Robbery is defined as’ Theft accompanied by violence,’ in practise Armed Robbery or similar, though it may extend to your grandmother being knocked over and having her handbag snatched. I think it unlikely to extend to stealing pineapple lumps unless the shop attendant was floored prior to the event.

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  39. Manolo (13,341 comments) says:

    Maybe Weihana is Clayton Cosgrove? :-)

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  40. David Garrett (6,372 comments) says:

    Stephen: Oh it’s the timeframe! When will the exponential rise BEGIN Kim? Will we see the prison numbers taking off prior to the NEXT election. The election after that?

    tvb: even the silliest have given up the “locked up for 14 years for stealing pineapple lumps” [the Kiwi version of the apocryphal American 'chocolate bar' I guess] Perhaps you should take a look at the ‘strike’ offences (section 86A of the Sentencing Act) before you make a fool of yourself…

    Backster: your definition is good enough for a layman…

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  41. Weihana (4,496 comments) says:

    # Manolo (5,014) Says:
    October 13th, 2011 at 2:10 pm

    Maybe Weihana is Clayton Cosgrove? :-)

    ———————————————–

    No I’m a high school senior apparently.

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  42. stephen (4,063 comments) says:

    Stephen: Oh it’s the timeframe! When will the exponential rise BEGIN Kim? Will we see the prison numbers taking off prior to the NEXT election. The election after that?

    So did he or did he not give a timeframe when making his original claim? It would seem reasonably important to the validity of such a claim.

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  43. David Garrett (6,372 comments) says:

    Stephen: Well perhaps he’ll join in and tell us what the timeframe is…..I dont actually recall a timeframe…hyberbole like that is normally not combined with any objective measure to enable it to be disproved…

    Weihana: Well you could save us all the speculation and tell us who you are….I’m David Arthur Garrett, of Kaukapakapa, DOB 1 October 1957

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  44. awb (301 comments) says:

    Wouldn’t a better approach to this whole justice issue be to significantly reduce sentences for non-violent crime, traffic offenses, non violent theft, drug offenses, and then use the free space to significantly increase sentences for violent crime, rather than just locking everyone up for longer? We need to rebalance our system of sentencing.

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  45. Scott Chris (5,875 comments) says:

    Manolo says:- “Maybe Weihana is Clayton Cosgrove?”

    Nah. Weihana’s biding his time, sharpening his wits in the debating chamber. He’ll be the new breed of Labour politician once this present rabble make way. Could be PM in a few years.

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  46. Weihana (4,496 comments) says:

    “tvb: even the silliest have given up the “locked up for 14 years for stealing pineapple lumps” [the Kiwi version of the apocryphal American 'chocolate bar' I guess] Perhaps you should take a look at the ‘strike’ offences (section 86A of the Sentencing Act) before you make a fool of yourself…”

    What if, on a third strike, a man comes home to find his daughter being sexually assaulted. He chases the offender around the room but the offender manages to escape out the front door. The man chases the offender outside and on his way grabs a baseball bat. The man pursues the offender down the street and eventually catches up to the offender but the offender doesn’t stop so the man whacks him accross the head with the bat whereby the offender falls to the ground, whacks his head on concrete and later dies from his injuries.

    It’s not self-defense as the offender was running away. If the man is convicted of manslaughter would ten years non parole be justified?

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  47. F E Smith (3,302 comments) says:

    Scott Chris @ midday

    It is plain to see when F E Smith defends the status quo, how conservative the whole system is

    What is that supposed to mean?  That change for change’s sake is a good thing? That we should remove all actual fairness and balance from a system (such as it is, the system naturally favouring the proseuction)  in order to show we are being ‘tough on crime’?

    I have no real problem with the three strikes law, especially in the form it eventually took, except for the inclusion of Indecent Assault as a strike offence.

    But I will defend those parts of the system that I think work, and criticise those that don’t. 

    I certainly do not view myself in any way as a conservative, hence my general support for ACT in this forum.
    weihana,

    What if, on a third strike, a man comes home to find his daughter
    being sexually assaulted. He chases the offender around the room but
    the offender manages to escape out the front door. The man chases the
    offender outside and on his way grabs a baseball bat. The man pursues
    the offender down the street and eventually catches up to the offender
    but the offender doesn’t stop so the man whacks him accross the head
    with the bat whereby the offender falls to the ground, whacks his head
    on concrete and later dies from his injuries.
    It’s not self-defense as the offender was running away. If the man
    is convicted of manslaughter would ten years non parole be justified?

     On the face of it, yes.  But tell me why that shouldn’t be a murder charge?

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  48. Scott Chris (5,875 comments) says:

    Weihana says:- “If the man is convicted of manslaughter would ten years non parole be justified?”

    Hmm, interesting case, because he can’t use provocation as a defense, only as a mitigating circumstance. But alas, the judge is constrained by the silly three strikes law, so the mitigating circumstance counts for nowt.

    A good example highlighting the inflexibility of prescriptive law.

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  49. Nookin (3,034 comments) says:

    Scott
    So, what you are really saying is that the guy deserves what he gets and that someone with two strikes against his name should be treated more leniently for what is, effectively, a deliberate and violent assault – something for which he has a seeming propensity – becaue the deceased was a sexual offender? Are we now promoting self-help in the administration of criminal justice?

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  50. Scott Chris (5,875 comments) says:

    F E Smith says:- “What is that supposed to mean? That change for change’s sake is a good thing?”

    No, I was referring to the inherent conservatism within a long established institution in which the players have a vested interest in seeing the status quo remain.

    Not for nefarious reasons necessarily, more because it is familiar territory where the established players are in control through their accumulated experience and expertise.

    I also believe they are enamoured of the system’s intrinsic beauty, just as is a man who has listened to Bach’s Toccata and Fuge in D Minor a thousand times and is in love with each and every abstract nuance.

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  51. David Garrett (6,372 comments) says:

    Scott: Is this the best you can do? You show yourself up as just as silly and uninformed as your young mate.
    I am assuming you (perhaps both of you) are an academic, since only academics come up with these fanciful “what ifs”

    You are ignoring – no doubt deliberately – the fact that for our mythical outraged father to be sentenced to ten years for manslaughter he would have to have previous convictions – probably for violence – which is highly unlikely, so the “strike regime” would have no application.

    And just in the interests of accuracy, the MAXIMUM sentence for manslaughter is life. Actual sentences can vary according to the circumstances from home detention to life, and all points in between. 3S has not altered judicial discretion there at all – unless the offender is on third strike.

    Do try and do a bit of basic research before tapping aware in front of your screen…

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  52. Weihana (4,496 comments) says:

    David Garrett,

    What’s wrong with speculation? Can be fun. I’m Weihana… of Auckland. :)

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  53. Weihana (4,496 comments) says:

    F E Smith,

    “But tell me why that shouldn’t be a murder charge?”

    I’m not sure which is why I chose the lesser charge for the example.

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  54. tristanb (1,133 comments) says:

    tvb:What we could see is people being locked up for 14 years for a aggravated robbery of pineapple lumps from a dairy.

    No. That person has commited two serious crimes prior to this.
    He’s probably raped someone (1st strike) and the judge let him off with 4 years because he was on P at the time and had a bad childhood. Then he beat up his girlfriend leaving her with severe head injuries (2nd strike), for which he got 2 years for GBH in Mt Eden.

    So rather than learning from his mistakes (or perhaps learning that punishment is quite mild in this country), he goes and assaults a dairy owner and steals some lollies, breaking the owner’s nose and causing about $200 worth of damage to the shop. In short, he’s a piece of shit. He deserves 14 years.

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  55. Scott Chris (5,875 comments) says:

    Nookin says:- “you are really saying is that the guy deserves what he gets”

    I simply put myself in the guys position, regardless of the two strikes. He possibly is a bit of an asshole, but regardless, he comes home, finds his daughter being raped.

    If I were he, I’d chase the guy down the road with a baseball bat too. Provided I merely intended to prevent him from escaping and roughed him up a bit, I reckon I should be let off, but with three strikes, I’d get ten years if he hit his head and died.

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  56. F E Smith (3,302 comments) says:

    a long established institution

    Yes, one that has evolved safeguards over time, taking note of the manifold injustices that have been done before.  What we have today did not spring from the minds of lawyers and judges fully formed, after all.

    in which the players have a vested interest in seeing the status quo remain.

    One that most people don’t realise is that the changes to the criminal justice process (as opposed to the chnages to the legal aid system) in no way affect the lawyers.  It affects the defendants.  Your assertion that lawyers have a vested interest in the status quo is one made time and time again, but no evidence has yet been provided for it.  In reality, it is just a dislike of defence lawyers that leads to this sort of accusation, not actual knowledge of what is wrong with the criminal justice process nor any actual and workable suggestions for change.

    I repeat, the defence lawyers who work in the criminal justice system have no vested interest in the status quo.  What we do have is the knowledge that amending the process in the manner that Simon Power has been legislating for, and in which the UK has implemented and that our MoJ seems to be drooling over, is detrimental to the process of justice.

    The only way you attack the interests of the defence lawyers (remembering that nobody ever attacks the prosecution lawyers or accuses them of having a vested interest in making convictions easier to obtain) is if you remove us from the system altogether.  In which case you would have each accused person representing themselves in court, with lawyers and police officers prosecuting them on behalf of the state. 

    But even then, I won’t be too worried, as I can always practice in other areas of litigation and make more money than I do as a criminal lawyer!  Won’t be as interesting, personally rewarding or have the same constitutional importance as defence work, but it would be more lucrative.

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  57. David Garrett (6,372 comments) says:

    Scott, Scott….read the Crimes Act and the Sentencing Act before commenting…or are you happy to be seen to be a fool?

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  58. Weihana (4,496 comments) says:

    # Nookin (1,224) Says:
    October 13th, 2011 at 2:52 pm

    Scott
    So, what you are really saying is that the guy deserves what he gets and that someone with two strikes against his name should be treated more leniently for what is, effectively, a deliberate and violent assault – something for which he has a seeming propensity – becaue the deceased was a sexual offender? Are we now promoting self-help in the administration of criminal justice?

    —————————————–

    The deceased wouldn’t deserve to have died for his crime, but certainly he is a criminal and deserves some form of justice. The point of the example is to appeal to those who probably don’t think a guy, who was just trying to defend his home and his family, should serve 10 years in prison.

    This sort of thing can happen. Bruce Emery is one example. There has also been cases when shop owners have been held up and then have pursued the robbers out of the store which is not self-defense. Any number of things could happen and just because an offender runs away it is not human nature to just sit there and not try and do something. Does this justify it? No, but does it deserve 10 years in prison when things go wrong? Hard to say.

    What this hypothetical also shows is how easy it is to quickly turn the tables and have the “tough on crime” people start siding with the dead rapist and be all concerned about his rights. Who is the victim here? The young girl being raped or the dead rapist?

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  59. Scott Chris (5,875 comments) says:

    David Garrett says:- “You show yourself up as just as silly and uninformed”

    Maybe so. That is the way with testing ideas. To some the test may be silly and naive, as in the real world there is no room for theory because politics just gets in the way.

    From my point of view, the political arena is silly and self corrupting. I’ll take silly and naive any day.

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  60. F E Smith (3,302 comments) says:

    tristanb,

    the judge let him off with 4 years because he was on P at the time and had a bad childhood.

    Most rape sentences are in the 8 to 10 year range, often higher if there are significant aggravating features. 

    Your 4 year example is invalid, especially as the offender being on P would probably be an aggravating feature (it certainly isn’t a mitigating feature and no lawyer would advance it as such) and the bad childhood concept is mostly media beat-up rather than actual reality.

    weihana,

    your hypothetical father attacked a person by hitting them on the head with a baseball bat.  Any person would know that death could be a possibility from such a blow, therefore a charge of reckless murder, at least, would be most appropriate.  Then the fact of provocation would be able to be used as a mitigating factor in the sentencing. 

    The man would still be a murderer, however, whatever the sentence.

    Who is the victim here? The young girl being raped or the dead rapist?

    Technically, both.

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  61. Scott Chris (5,875 comments) says:

    David Garrett says:- “or are you happy to be seen to be a fool?”

    Not really. That is what I consider getting over yourself and not being afraid to make mistakes. It’s the best way to learn, if you have the guts.

    Perhaps, rather than casting aspersions, you’d like to illuminate us with your wisdom. Try to stick to the argument.

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  62. Weihana (4,496 comments) says:

    F E Smith,

    “weihana,

    your hypothetical father attacked a person by hitting them on the head with a baseball bat. Any person would know that death could be a possibility from such a blow, therefore a charge of reckless murder, at least, would be most appropriate. Then the fact of provocation would be able to be used as a mitigating factor in the sentencing.

    The man would still be a murderer, however, whatever the sentence.”

    Though he would serve at least 10 years surely which raises the question of whether that’s justifiable in such circumstances. There would many who think he should just be let off. They’d simply conclude “one less rapist, good riddens”.

    I think some punishment would be warranted but 10 years? Seems a little harsh.

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  63. F E Smith (3,302 comments) says:

    though he would serve at least 10 years surely

    Not necessarily.  As I said, the provocation factor could be advanced as mitigation and allow the judge to impose a finite sentence rather than one of life imprisonment.

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  64. Scott Chris (5,875 comments) says:

    F E Smith says:- “changes to the criminal justice process in no way affect the lawyers.”

    It would, if they had to learn a whole new system of law.

    Its hard to look past the fact that common law is all based on what some guy just made up on the spur of the moment originally.

    Wouldn’t it make sense to begin anew, starting with first principles, to create a republican constitution from which all our Zealandian law springs?

    Instead we have a tired old mainframe with a million patches and a billion glitches.

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  65. wreck1080 (3,726 comments) says:

    national need to take a list of the worst offenders with current strikes and name each one, the convictions, and interrogate labour as to why these people should be given leniency.

    When you put faces to crimes, they do seem much worse, and labour want to be best mates with these criminals. Labour are tarring themselves by association.

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  66. KiwiGreg (3,170 comments) says:

    “Its hard to look past the fact that common law is all based on what some guy just made up on the spur of the moment originally. ”

    That’s what you think the common law is? Kind of hard to have a debate when you don’t have any idea of what you are debating. Or are you trolling?

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  67. stephen (4,063 comments) says:

    dont actually recall a timeframe…

    Thanks David.

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  68. Scott Chris (5,875 comments) says:

    KiwiGreg:- “Or are you trolling?”

    Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action.

    So what do you understand it to be then?

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  69. David Garrett (6,372 comments) says:

    “What some guy made up on the spur of the moment”….God save us all if this guy has a tertiary education….

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  70. KiwiGreg (3,170 comments) says:

    Yeah I know what common law is, not just as the cut and pasteof some definition from the internet. But even your c&p doesnt equal “What some guy made up on the spur of the moment”.

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  71. Lee01 (2,171 comments) says:

    Its hard to look past the fact that common law is all based on what some guy just made up on the spur of the moment originally.

    OMG. Did Scott actually just say that? Thats just absurd.

    Weihana opines:

    What’s wrong with speculation? Can be fun. I’m Weihana… of Auckland.

    Especially when it makes it easy to avoid the real issues and ignore the fact that three strikes was in part a response to hundreds if not thousands of cases of people being brutally assaulted, raped and murdered by scum who had years of previous offending for violence.

    But hey, who cares about that right? Lets have fun and spin some mindless speculation out of our asses. Yeah!

    FFS. Grow up.

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  72. F E Smith (3,302 comments) says:

    if they had to learn a whole new system of law

    But most of us wouldn’t have to.  For example, I have three areas of litgation that I can easily practice in, so removing one of those areas would simply mean that I focus on the other two.  Both of which are more lucrative financially than criminal defence work.

    Most criminal defence lawyers already practice in several areas of litigation, so the number of people affected as you say would be in the tens, not the hundreds.  And even then, the change to another area of practice isn’t as difficult as you might think.

    Its hard to look past the fact that common law is all based on what some guy just made up on the spur of the moment originally. 

    Not really.  The development of the common law was cumulative and over time.  It was not a single decsion remaining unchanged for 700 years.  And the process has changed out of sight from what it was even 200 years ago. And that for the better, as many of the practices had incorrect concepts.  But what we have today is actually pretty damn good, and you would be hard placed to find something better. 

    Speaking of which, I note that you haven’t suggested anything better, simply that we should change because you don’t like what your misconceptions suggest to you about legal history.

    Wouldn’t it make sense to begin anew, starting with first principles, to
    create a republican constitution from which all our Zealandian law
    springs?

    Eh?  That has nothing at all to do with criminal process.  Changing the constitution would in no way have any effect on the criminal process at all.  Are you suggesting that NZ becoming a republic would somehow mean we would design a new criminal justice system?  If so, who would devise it and how? After all, it would be the first entirely new criminal process in hundreds of years.

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  73. stephen (4,063 comments) says:

    Ian Lees-Galloway also annouced to his facebook echochamber this morning that Labour will be closing all the one man police stations.

    apprently the rural community can go screw itself for not voting labour in the last election… or ever.

    Apparently he said they were going to double staff in those stations.
    http://www.stuff.co.nz/national/politics/5773402/Labour-would-end-sole-charge-police-stations

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  74. Scott Chris (5,875 comments) says:

    David Garrett:- “God save us all if this guy has a tertiary education….”

    So you define common law. You’re full of exasperated sighs and ad homs, but you have no substance.

    KiwiGreg:- I’m waiting for your definition.

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  75. Lee01 (2,171 comments) says:

    Common law has developed over hundreds of years based on previous case law and precedent. Its as far from ““What some guy made up on the spur of the moment” as its possible to get.

    No wonder the West and the Anglo-Sphere is in such shape when our pathetic excuse for an education system is churning out people who have no knowledge or understanding of the foundations of their own civilisation.

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  76. Scott Chris (5,875 comments) says:

    Okay, I’ll slow it down a little. What was the first case in common law?

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  77. Lee01 (2,171 comments) says:

    Wouldn’t it make sense to begin anew, starting with first principles, to create a republican constitution from which all our Zealandian law springs?

    No, that would make no sense whatsoever. You would still have to base the constitution and the law on something other than thin air, which means on previous precedent. Which is what common law is.

    I am rapidly coming to the conclusion that Liberals should not be allowed to vote. Or Teach. Or allowed anywhere near children.

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  78. Scott Chris (5,875 comments) says:

    FE Smith says:- “Changing the constitution would in no way have any effect on the criminal process at all. Are you suggesting that NZ becoming a republic would somehow mean we would design a new criminal justice system?”

    That is exactly what I am suggesting. Morality is derived from an arbitrary source. A constitution is the source of a society’s morality and law.

    I don’t thing you have registered the fact that I am talking about the very foundations of society here.

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  79. F E Smith (3,302 comments) says:

    What was the first case in common law?

    Wouldn’t you have to go back to the Magna Carta for that?  Then there are reports going back to sometime in the 14th or 15th centuries.  I remember citing cases from the 16th century, and indeed have done so in this forum.

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  80. Lee01 (2,171 comments) says:

    Okay, I’ll slow it down a little. What was the first case in common law?

    It does not work like that. One case or one law developed from another, going back hundreds of years. And even then there was precedent and previous experience. Our Anglo-Saxon law developed from Celtic, Germanic and Roman ideas and laws. You cannot go back to the beginning in that way. Nor can you undo it all and start again. Its a TRADITION in the best sense of the word.

    Why is it that Liberals and Marxists think they can just ignore history and tradition and invent all new societies out of thin air?

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  81. David Garrett (6,372 comments) says:

    Scott: Stop now! Dont you have any friends to disconnect you from the net?

    although I begin to see why psuedonyms are so popular in this…ah…medium….

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  82. Scott Chris (5,875 comments) says:

    F E Smith:- “Wouldn’t you have to go back to the Magna Carta for that?”

    Thanks for that, but my question wasn’t really directed at you, as I know you are well informed on these matters.

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  83. F E Smith (3,302 comments) says:

    That is exactly what I am suggesting. Morality is derived from an
    arbitrary source. A constitution is the source of a society’s morality
    and law.

    Which means you are ignoring the point.  You are criticising the process, but trying to change the moral foundation.  Two different things.  I don’t care where you get your rules from, the question here is how to implement them.  You not believing in anything concrete means that you probably don’t have a consistent sense of fairness, either, which means your criminal justice system could be completely arbitrary.

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  84. Lee01 (2,171 comments) says:

    A constitution would still have to based on something, on previous experience. True morality is derived from the Natural Order and from God. There is nothing arbitrary about it.

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  85. Scott Chris (5,875 comments) says:

    David Garrett:- “Scott: Stop now! Dont you have any friends to disconnect you from the net?”

    Still no substance I see.

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  86. Scott Chris (5,875 comments) says:

    Lee

    Sorry Lee, but could we leave the truth of God’s morality to another time please.

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  87. Lee01 (2,171 comments) says:

    I see plenty of substance in what David says. He is trying to do you a favour. Your embrassing yourself.

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  88. Lee01 (2,171 comments) says:

    Sorry Lee, but could we leave the truth of God’s morality to another time please.

    Your missing the point. Western Law, and our Anglo-Saxon law, is something that has built up over centuries of experience and tradition. It derives from our experience, from observation of the natural order, and from our religious foundations. All of that has gone into the mix. Whether you believe in God or not is not the point, the point is that you cannot throw out thousands of years of experience and tradition and make something up arbitrarily out of thin air. Human societies do not work like that. And those that have tried have always been totalitarian and muderous in the extreme.

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  89. Scott Chris (5,875 comments) says:

    Lee says:- “Your embrassing yourself.” [sic]

    Nope. What’s to be embarrassed about? I’m just some guy who is interested in changing the system, so I am quite familiar with its foundations, even if others are less inclined to examine their assumptions.

    Better get back to that old 3 strikes chestnut eh. Wouldn’t want to be seen as a troll.

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  90. Lee01 (2,171 comments) says:

    Reforming the system is fine. Inventing a new one out of thin air is likely to be a disaster. I think the system needs radical reform. But I don’t think that has to involve inventing an entirely new system of constitutional arrangements and legal precedents.

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  91. Nookin (3,034 comments) says:

    “common law is all based on what some guy just made up on the spur of the moment originally”
    OMG. Scott Chris is dating Penny Bright!

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  92. Scott Chris (5,875 comments) says:

    FE Smith says :- “You are criticising the process, but trying to change the moral foundation.”

    Not necessarily. My assumption is this. A strong constitution leads to strong law. It gives a largely secular society something to be proud of, and to believe in.

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  93. Mick Mac (1,091 comments) says:

    Imagine if some bastard who’s done many crimes kills or rapes or both some kid/young girl during election time.
    Labour will be toast.

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  94. Mick Mac (1,091 comments) says:

    I have to disagree SCott, America has a good one but they don’t live it and contue to chip at it.
    bloody lefties and secular humanists.

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  95. F E Smith (3,302 comments) says:

    Scott,

    You are talking about a system and concepts that you don’t seem to understand.

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  96. Lee01 (2,171 comments) says:

    A strong constitution leads to strong law. It gives a largely secular society something to be proud of, and to believe in.

    Well, I certainly agree that people need something to believe in! ;)

    But the fact is that we already have a strong constitutional system based on the British Crown and British common law, as well as our own NZ legal precedents. We need to re-affirm those and strengthen our connection to them.

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  97. F E Smith (3,302 comments) says:

    But while we are at it, can you explain what a ‘strong’ constitution is and just how such a constitution leads to ‘strong’ law, whatever that is.

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  98. Lee01 (2,171 comments) says:

    Yes, have to say that the American experience does not make republican constitutionalism very attractive to me. While the original constitution was a good thing, subverting it has been fairly easy, and currently the USA is about as far from the original constitutional principles as it is possible to get.

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  99. Scott Chris (5,875 comments) says:

    Mick Mac:- “America has a good one but they don’t live it and continue to chip at it.”

    I would suggest we use the American Constitution as a reference point. It is really quite a beautiful document.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

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  100. laworder (269 comments) says:

    Weihana wrote


    What if, on a third strike, a man comes home to find his daughter being sexually assaulted. He chases the offender around the room but the offender manages to escape out the front door. The man chases the offender outside and on his way grabs a baseball bat. The man pursues the offender down the street and eventually catches up to the offender but the offender doesn’t stop so the man whacks him accross the head with the bat whereby the offender falls to the ground, whacks his head on concrete and later dies from his injuries.

    It’s not self-defense as the offender was running away. If the man is convicted of manslaughter would ten years non parole be justified?

    There is a provision under our three strikes law which allows judicial discretion if a strike sentence can be demonstrated to be “manifestly injust” which would likely be the case in this instance

    Regards
    Peter J
    see http://www.sensiblesentencing.org.nz

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  101. Weihana (4,496 comments) says:

    # Lee01 (1,427) Says:
    October 13th, 2011 at 3:39 pm

    Its hard to look past the fact that common law is all based on what some guy just made up on the spur of the moment originally.

    OMG. Did Scott actually just say that? Thats just absurd.

    Weihana opines:

    What’s wrong with speculation? Can be fun. I’m Weihana… of Auckland.

    Especially when it makes it easy to avoid the real issues and ignore the fact that three strikes was in part a response to hundreds if not thousands of cases of people being brutally assaulted, raped and murdered by scum who had years of previous offending for violence.

    But hey, who cares about that right? Lets have fun and spin some mindless speculation out of our asses. Yeah!

    FFS. Grow up.

    ——————————————————–

    Oh Dear, Lee01 not representing Jesus very well again. Losing your cool. Tisk tisk.

    Anyway to clear things up for you, the “speculation” was in regards to who I was.

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  102. Scott Chris (5,875 comments) says:

    F E Smith:- “You are talking about a system and concepts that you don’t seem to understand.”

    I’m talking in very simple terms that are hard to get wrong. Perhaps you are suggesting that I am naive, and ignorant of the detail of the system we currently employ.

    If law and its systems doesn’t stem from assumptions about morality, then where does it spring from?

    Once we establish what morality is and work out its ramifications and write it down, what status does that document hold?

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  103. Lee01 (2,171 comments) says:

    Scott, your citing the Decleration of Independence, not the Constitution.

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  104. Lee01 (2,171 comments) says:

    Once we establish what morality is

    Ahem. How exactly would you propose doing that?

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  105. Scott Chris (5,875 comments) says:

    Weihana says:- “OMG. Did Scott actually just say that? Thats just absurd.”

    Yup. Perhaps you’d like to define what common law is, as the other challengers have scuttled off into thin air.

    Read it carefully. This is the definition of case law:

    “… common law is all based on what some guy just made up on the spur of the moment originally.”

    In other words, the first piece of case law was an arbitrary decision based on assumptions. Couldn’t be clearer.

    That is the basis for all other case law.

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  106. Lee01 (2,171 comments) says:

    Just a point about the US Constitution. It should be noted that the Founding Fathers did not invent it out of thin air. It was in many respects an affirmation of British common law, particularly with regards to property rights.

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  107. Lee01 (2,171 comments) says:

    Perhaps you’d like to define what common law is, as the other challengers have scuttled off into thin air.

    Actually no we haven’t. Both F.E. Smith and myself have explained it to you, repeatedly I might add, and your definition of “based on what some guy just made up on the spur of the moment” just does not hold water.

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  108. Scott Chris (5,875 comments) says:

    Lee “your citing the Decleration of Independence, not the Constitution.”

    Good point. Still good constitutional words though.

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  109. Lee01 (2,171 comments) says:

    I especially like the bit about rights being grounded in the Creator :)

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  110. Scott Chris (5,875 comments) says:

    Lee – “an affirmation of British common law”

    That’s why I specifically said “use as a reference”

    With regards to morality, a good place to start is this:

    I want good for me.
    Other people want good for them.
    Self awareness acts in self interest.
    Self awareness is aware of other self interest.
    My self interest comes into conflict with other self interest.
    How we resolve that conflict is called moral compromise.
    Moral compromise is an arbitrary set of rules designed to achieve a goal of giving all humans what they want and relies on treating all self interest as one thing called society.

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  111. Scott Chris (5,875 comments) says:

    Lee says:- “I especially like the bit about rights being grounded in the Creator”

    Yup, so do I. Works for everyone except nihilists who don’t really exist anyway from an existentially relative position.

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  112. Scott Chris (5,875 comments) says:

    Heh, I bet there are a few people out there boning up on what common law actually is and what it was originally based on.

    Not looking specifically at:

    David Garrett
    KiwiGreg
    Lee
    Weihana
    Nookin

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  113. Scott Chris (5,875 comments) says:

    Oops, Apologies Weihana, I read you quoting what Lee said as being what you wrote. Please ignore my assertions that you don’t know what case law is.

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  114. Bodger (12 comments) says:

    Scott Chris is the new Philu, only with better grammar and punctuation!

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  115. Lee01 (2,171 comments) says:

    Actually I’m working on my last assignment for the year. I already know what common law is and where it came from. Read the explantions I gave above.

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  116. Weihana (4,496 comments) says:

    laworder (51) Says:
    October 13th, 2011 at 4:30 pm

    “There is a provision under our three strikes law which allows judicial discretion if a strike sentence can be demonstrated to be “manifestly injust” which would likely be the case in this instance”

    Though as I understand it, for strike 3 murder, even if manifestly unjust it would fall back to s103 where a minimum sentence of 10 years would be required. Although I note F E Smith says not necessarily and I would have to defer to his expertise in such matters.

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  117. Weihana (4,496 comments) says:

    Scott Chris,

    No worries. It’s easy to confuse Lee and myself :)

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  118. Weihana (4,496 comments) says:

    # Lee01 (1,436) Says:
    October 13th, 2011 at 4:48 pm

    I especially like the bit about rights being grounded in the Creator :)

    ————–

    Ahh indeed.. Praise be to Allah. :)

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  119. Nookin (3,034 comments) says:

    Scott Chris
    Actually, you got one wrong. I read examples of the common law on a daily basis and have a basic understanding of the whole concept – enough to cobble through 36 years of practice without looking altogether stupid. It was the making stuff up bit that reminded me of the water woman. Tell me, you aren’t dating her are you?

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  120. Scott Chris (5,875 comments) says:

    Nookin

    You know it from using it, but my point was simply this. All case law can be traced back to an original case, which was decided on based on a bunch of historically relevant customs and the arbitrary reasoning by the original judge or chieftan or whatever. All subsequent cases refer to that original case.

    My description was flip but accurate. Coupled with that, no one who told me I was talking shit deigned to actually critique my exact words, or supply a contrary definition.

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  121. Pauleastbay (5,035 comments) says:

    Scott Chris

    Milky Mike has obviously got a job in the last week or so because he’s not every second comment anymore, perhaps you could follow his example and give us a fucking break.

    Yesterday you suffered the worst owning ever on KB and you are well on the way again on this thread.

    The ego destroys people.

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  122. Elaycee (4,300 comments) says:

    The suggestion of repealing this excellent legislation will be another nail in the Labour corpse. Good.

    Bleeding hearts (including the idiots who want to actually reduce penalties) should note that three strikes means that some moron needs to have two previous criminal convictions for the third strike implications to kick in. Three!

    And thankfully the idiots who propose that we should actually reduce some sentences are well in the minority. It remains a national disgrace that a referendum that delivered a result whereby over 90% of voters supported stronger penalties, has been ignored. Not reduced panty waist penalties, but stronger penalties.

    Clearly some people just don’t have the guts to put criminals out of circulation – where they belong. But I can bet their bleating will be sky high if ever they become the victims of a violent crime.

    Hypocrisy is a dish best served cold.

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  123. F E Smith (3,302 comments) says:

    All case law can be traced back to an original case

    Hold on, are you saying there is, in effect, an ‘Adam’ of case law?  Because if you are, then you are very wrong.

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  124. Elaycee (4,300 comments) says:

    @pauleastbay – My IT guy installed software that means I don’t have to put up with the dross and crap from Scott Chris any more and it is bliss!

    But out of curiosity I’ve just checked – the stalk has posted no fewer than 1,000 posts since 13th September.

    I kid you not – a thousand posts in a month. :(

    Scary.

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  125. Scott Chris (5,875 comments) says:

    Pauleastbay

    I got owned yesterday. I admitted it. I moved on.

    Today I happen to be right. Whether you can see it or not, epistemology is something I know quite a bit about.

    Apart from which, people wouldn’t bother arguing if there was no one to argue with. Perhaps you’d like Kiwiblog not to have me or mike or weihana or toad or jack or lee or luc hansen, but I tell ya. It would be an echo chamber like red alert.

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  126. F E Smith (3,302 comments) says:

    Actually, funnily enough, and completely coincidentally, the book I am reading at the moment is “A Constitutional and Legal History of Medieval England”. Seems it might be relevant, but I am only at page 88, so will go to the index for some of the good stuff you want, Scott.

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  127. Elaycee (4,300 comments) says:

    nookin: “It was the making stuff up bit that reminded me of the water woman. Tell me, you aren’t dating her are you?”

    That would be a case of ‘the gruesome twosome’… would it not?

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  128. Scott Chris (5,875 comments) says:

    F E Smith

    Bad wording. Each individual case to an individual source. Thought it was self explanatory.

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  129. Scott Chris (5,875 comments) says:

    Some people may find this interesting:

    The constitution of New Zealand consists of a collection of statutes (Acts of Parliament), Treaties, Orders in Council, letters patent, decisions of the Courts and unwritten constitutional conventions.

    As with the United Kingdom, *there is no one supreme document*

    Perhaps it is no coincidence that there is a constitutional review being conducted……

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  130. F E Smith (3,302 comments) says:

    Thought it was self explanatory

    Two possible explanations for what you said.  I was making sure.  You are talking to a lawyer, so I like to be as accurate as possible.

    And I can’t read your mind, so asked instead.

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  131. Scott Chris (5,875 comments) says:

    FE Smith:- “And I can’t read your mind, so asked instead.”

    Sorry. Gettin a little tetchy with some of the other commenters. I should have been clearer.

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  132. mikenmild (10,644 comments) says:

    Well, this tooing and froing about the sources of the common law is all very entertaining. Can I take it we’re all agreed that the 3-strikes law was a populist piece of nonsense?

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  133. MyNameIsJack (2,415 comments) says:

    Lee01 (1,436) Says:

    October 13th, 2011 at 4:37 pm
    Once we establish what morality is

    Ahem. How exactly would you propose doing that?

    The way we always have – observation, reason, experience.

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  134. nasska (10,636 comments) says:

    mikenmild

    No.

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  135. Bob R (1,336 comments) says:

    ***Can I take it we’re all agreed that the 3-strikes law was a populist piece of nonsense?***

    Well, if you mean it was well supported then yes. Not nonsense though, in fact quite the opposite. It’s a very sensible and responsible piece of legislation. Remember why we have government in the first place, to protect citizens. This is an excellent law and Labour should leave it alone.

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  136. F E Smith (3,302 comments) says:

    The Common Law is a misunderstood concept. Most people think it is simply cases, working with the doctrine of stare decisis and restricting judges from deviating from previous cases.  This concept is mistaken. 

    The Common Law refers to a whole series of sources of law, including legislation, proclamations, treaties and case law, all taken together to make up the Common Law.  It also refers, and this is more important, to the form of the law, with the Common Law early on becoming quite rigid in its form and allowing only cetain types of actions to be brought before a Court.  This was, obviously, quite inequitible, as often there were wrongs committed that did not fall into the categories accepted by the Common Law courts.  This lead to the development of what became known as the law of Equity, which was administered by the Court of Chancery, which had a strong rivalry with the Common Law courts for many years.  Today, those two concepts are combined and the superior Courts are entitled to apply both the common law and equity, although in the modern age the statute has become king and the Common Law is becoming increasingly irrelevant in NZ justice.

    For the source of the Common Law, most people go back to around the time of Edward I, but in reality the Normans saw themselves as simply being the inheritors of that which existed in England prior to 1066, so for the real sources of the law we need to look at the Anglo-Saxon law-making, as well as that of the Danegeld.  If you follow the law back, you will end up for the most part with the laws given to us by those early English kingdoms are extremely influential even today.  The Anglo-Saxons, especially, had devised a system of law that was quite sophisticated for the time, although it was not the written compendium of Roman law, on which modern day Civil Law jurisdictions base their legal systems. 

    Instead, the Anglo-Saxons had moved from a system of folk courts into more sophisticated system of local courts known as the Hundred, which was either made up of 100 free men, or, possibly, the people within an area of about 100 hides of land, each hide being about 120 acres, although the former is more likely, especially as there was a sub-group called a Tithing, made up of 10 men and headed by a Titheman.  The Hundred was was generally headed by a Hundredman!  Anyway, about once a month there would be a gathering of the Hundred to hear the various cases that needed to be decided, both civil and criminal, as well as witness property transactions and the like.  These courts were sometimes headed by the king’s local representative, the Shire Reeve (which, if you say it quickly, will show you where our modern sherrif comes from), but more often by his subordinate, the hundred reeve.  The Hundred Courts applied a mixture of local custom, kingdom law and what we would consider to be equity. 

    The next level of Court was the Shire Court, which was headed by the Kings officials, and there was a route of appeal from the Hundreds to the Shire court.

    What I mean by Kingdom law is simply to say that periodically a king of one of the states that comprised England (i.e. Wessex, Kent, Mercia Northumbria, etc)  would have the laws written down by their administrators, especially if that king was of a reforming mind and he wanted to change the local practices for the better. Because of the fluid nature of dominance in Anglo-Saxon England, territorial boundaries ebbed and flowed until there was a greater unison of the land in the 10th century.  The mix of the sources of law grew stronger until there was a unified system that was applied, with regional variations, up and down England.

    The Norman invasion brought another set of laws and procedures from the continent, and the early Norman kings grafted these onto the existing system of Anglo-Saxon law and procedure, further refining the system.  This was done, so my source says, because the Norman Kings knew a good thing when they saw it and they never destroyed an effective institution.  Instead, their additions were made with the purpose of advancing the efficiency that had grown up over the last 400 years of Anglo-Saxon legal system.  By the time of Henry I (reigned 1100-1135) this system was cemented in place and formalised, retaining the hundred courts and the shire courts but turning them into ‘efficient and rational tribunals of law’.

     The first real enacted (as opposed to collected or proclaimed) law of the modern age was probably the Magna Cartas of 1215, 1216, 1217 and 1225, the last of which was a fairly comprehensive statement of the state of public law at the time.

    That said, it was Edward I who really brought order to the Common Law, which was, until he turned his attention to it, a bit of a hodge-podge. He took the Court system and organised it, as well as putting into legislation many of the rules that had developed through the Courts up to that time.  However, I note that, even by that time, the concept of judge made law was beginning to lose force since the middle of the 1200s.  This reforming of the Common Law saw the King and his Council (the body that became Parliament) come out as the primary source of law, with the judges given the role of interpreting what the legislating council had enacted.  Just like it is today.  There was still some flexibility, most famously seen in the modern concept of negligence, which dates from the case of Donoghue v Stevenson in 1932.  Interestingly enough, it is the time of Edward I that sees the formation of what we now know as barristers and solicitors, originally called pleaders and attorneys.  The rule was that any person was entitled to have assistance in bringing their case before the Court, the exception being, interestingly enough given todays legal aid reforms, those accused of a felony crime, who were not entitled to have anyone assist them.

    So, in summary, can the law be traced back to a single lawgiver (on each point) who pronounced an inital source, then no, that is incorrect.  The ‘Common Law’ is an amalgam of sources of law, each of which has had its own effect on the law as it is today.  But, as a general rule,  you cannot go back to one man’s decision, because it just ain’t so.

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  137. F E Smith (3,302 comments) says:

    mm,

    I agree with Nasska.

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  138. Pauleastbay (5,035 comments) says:

    Populist – Yes

    Nonsense – No

    Unnecessary – Yes

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  139. Scott Chris (5,875 comments) says:

    FE Smith says:- “So, in summary, can the law be traced back to a single lawgiver (on each point) who pronounced an inital source, then no, that is incorrect.”

    Thanks for that summary. Whether you agree with my original assertion or not, what I was effectively saying holds true.

    Common Law according to your definition began with the Saxons.

    I would dispute this.

    Without any evidence other than speculation, I would say that Roman case law would have influenced Anglo Saxon case law. That idea conforms with the Dawkins’ meme theory. Who knows what Celtic customs survived from before the Romans? And so on and so on.

    To say that case law cannot in reality be traced back to a single source may be true, but in essence, all case law must have had a source, no matter how bastardized or convoluted the chain of reference.

    And so, in the end, some buggers somewhere made up a the first decisions for each individual piece of case law, the seeds of which remain in common law today.

    And so we arrive back at what I originally said, which was:

    “Its hard to look past the fact that common law is all based on what some guy just made up on the spur of the moment originally. ”

    I rest my case.

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  140. David Garrett (6,372 comments) says:

    Still waiting for Kim Workman to come in and tell us when the dramatic rise he predicted in prisoner numbers will occur as a result of 3S, and about when exactly we can expect them to triple, as he also predicted…

    Come in Kim, I know you are out there!

    Just in case Mikey, perhaps you can let him know his contribution is eagerly awaited….

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  141. mikenmild (10,644 comments) says:

    I think you do need a rest, Scott.

    ‘Its hard to look past the fact that common law is all based on what some guy just made up on the spur of the moment originally. ‘

    That statement implies that common law derives from arbitrary and spontaneous decisions. Nothing could be further from the truth. In essence, a judge embodies the will of the community. A judge that departs markedly from a community’s common values would so be a judge no longer.

    It is far too mechanistic to say that the law has descended in a chain from one original decision. Judges’ precedents have been an effective codification of the prevailing social values. As those values have changed over time so too have the decisions. Precedent is important, but so too has been applying the principles of law to the current situation. Thus long-held precedents upholding such diverse things as tiral by battle, slavery and the right to confine a jury until it came up with a verdict approved by a judge eventually bit the dust.

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  142. F E Smith (3,302 comments) says:

    Scott,

    Without any evidence other than speculation

    Which says a lot, mostly that you are wasting everyone’s time by making things up as you go along.

    I would say that Roman case law would have influenced Anglo Saxon case law

    Except that the Romans didn’t work with case law. Roman law involved a written codex from which rulings were made in each case.  They didn’t have the concept of precedent that the Common law has.  Roman law forms the foundation of modern European Civil law.  It is the rival system to the Common law, and one part of the hybrid that is Scots law.

    Who knows what Celtic customs survived from before the Romans and so on and so on.

    Except that the Celts were completely over-run by the Angles, Saxons and Jutes and none of their systems remained once the Anglo-Saxon kingdoms had established their pre-eminence in England.  Indeed, we know what form of law the Romans used and we know that it has not been translated into Anglo-Saxon law, as we can compare the Anglo-Saxon law with that of other germanic tribes and find real similarities between those who were not Romanised and real differences with those who were Romanised.

    To say that case law cannot in reality be traced back to a single source
    may be true, but in essence, all case law must have had a source

    Which is two different points.  You accept that I am correct but then try to fudge what you said.  Don’t.  Of course the decisions made in cases have a preceding basis, but that preceding basis was not

    a bunch of historically relevant customs and the arbitrary reasoning by the original judge or chieftan

    but instead a considered group of laws, customs and rulings made by a number of various groups, including groups of hundredmen, legally qualified administrators, kings, officials, and others, both written and unwritten.  There is no evidence whatsoever (not that evidence apparently worries you) to show that, as you say,

    common law is all based on what some guy just made up on the spur of the moment originally.

    You are using your own faulty reasoning to try to prove your point, while trying to redefine the question in order to obfuscate the fact that you were and are completely wrong.  

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  143. Scott Chris (5,875 comments) says:

    FE Smith – “Which says a lot, mostly that you are wasting everyone’s time by making things up as you go along.”

    Hmm, now you’re gettin tetchy. Even if Romans didn’t use case law (which I suspect they did anyway), there must have been an *original* case. There logically cannot not have been. It’s a logical impossibility.

    I was being frivolous by saying “based on nothing more than speculation”. The very next sentence I cited Dawkins as the basis for the idea. Perhaps that is what you object to. Try not to use such inflexible terms of reference. We’re in a debating forum, not a silly pedantic court of law.

    If you say you haven’t learned anything from this discussion, then I’d call you a liar. I didn’t force you into this discussion, nor anyone else. Pfft.

    Good night.

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  144. David Garrett (6,372 comments) says:

    I have learned you are a complete twat….

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  145. F E Smith (3,302 comments) says:

    Scott,

    I just cannot improve on David’s comment above. The arrogance you are displaying is extraordinary.

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  146. Scott Chris (5,875 comments) says:

    David Garrett – “I have learned you are a complete twat….”

    lol! What a coincidence. Ditto.

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  147. Pauleastbay (5,035 comments) says:

    Completely owned two days on the trot. Tomorrow is strike three, outta here for life would be apt- you may have had something there after all DG

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  148. Scott Chris (5,875 comments) says:

    F E Smith – “The arrogance you are displaying is extraordinary.”

    Yup. I’m arrogant. At least I’m aware of it.

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  149. Scott Chris (5,875 comments) says:

    Pauleastbay:- “Completely owned two days on the trot.”

    Ha! You plainly didn’t:

    1) read the discussion or
    2) understand the discussion or
    3) both of the above (yes Paul, it’s called a logical paradox)

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  150. labrator (1,745 comments) says:

    So the excuse for abrasive arrogance is self-awareness? How about a little humility. It’s a much greater virtue than arrogance. You had an opportunity to engage with the instigator of the law, spurned that opportunity and then wasted your other opportunity to learn from a skilled, extremely patient and charitable lawyer all under the banner of “arrogance”.

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  151. Scott Chris (5,875 comments) says:

    labrator – “So the excuse for abrasive arrogance”

    If you analyse the discussion dispassionately, you will find I was using arrogance to combat boorish insult, especially with the ill mannered Garrett. With Smith, I resorted to extreme arrogance when he accused me of wasting his time. As if I’d somehow forced him to respond. Grr. Still pissed about that one.

    Shame really. I’d really rather join hand and sing Kumbaya.

    For FE Smith:

    “All difficult things have their origin in that which is easy, and great things in that which is small.” Lao Tzu

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  152. Pauleastbay (5,035 comments) says:

    I read the comments that made sense as well as your egotistical ramblings, I understood what FES stated – I was just embarrased for you – you were absolutley smoked over and remember this was predicted several hours ago .

    There was no logical paradox you were just plain and simply wrong, as you have been for a majority of your 2000 plus comments. 1000 comments since September 13th, mate thats sad.

    Now I realise Mrs Chris’s little lad Scott is the only one in step but you are full on delusional at the moment and fucking boring

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  153. big bruv (13,249 comments) says:

    Scott Chris

    I accept that you are an idiot, that much is clear. However even I do not like seeing anybody make a fool of themselves (save for the ultimate moron, D4J).

    Please for your own sake do not attempt to get into a shit fight with F E Smith and David Garrett, they will simply tear you to pieces.

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  154. lofty (1,303 comments) says:

    At last this tosser Scott Chris is being given the message…1000 posts since sept…what a sad bugger you are Scott.
    The majority of posters here actually have a real life, and to get to 1000 posts in total takes a couple of years normally.
    The arrogance you show is simply outstanding, you actually think that if you did not post over 2000 posts, in the short amount of time you have been here, that this place would resemble an echo chamber…delusion much!!!!

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  155. publicwatchdog (2,099 comments) says:

    How come your ‘three strikes and out’ legislation did not apply to ‘white collar’ crime David?

    What is the difference between the patched gang member stealing your money in an armed bank robbery and your pin-striped suited accountant stealing your life savings through fraud?

    How come since 2006, to date there have been SIXTY-FOUR finance industry collapses?

    SIXTY-FOUR finance industry collapses that have happened in New Zealand ‘perceived’ to be the least corrupt country in the world according to the 2010 Transparency International ‘Corruption Perception Index’?

    Ever tried getting statistics on ‘white collar’ crime, as you can for violent crime?

    I have.

    I was unsuccessful.

    It seems that (just like with the Rena oil spill) – there is no clear ‘command structure’ – or ‘organisational flow chart’ – which sets out whom exactly is responsible for what – when it comes to appearing to fight ‘white collar’ crime.

    Out of SIXTY-FOUR finance industry collapses – I was interested in finding out which of three of the major parties – the Police, the SFO and the Finance Markets Authority (FMA) would potentially be responsible for what – but it seems that there is no overview document which clearly outlines the areas of responsibility for each of these parties, when initiating prosecutions against ‘white collar’ crime.

    Part of the problem seems to be that there is a division of Ministerial responsibility when it comes to ‘white collar’ crime.

    The Police and SFO report to the Minister of Police, whilst the FMA reports to the Minister of Commerce.

    So – who’s in charge?

    Who’s the ‘lead’ agency in charge of fighting ‘white collar’ crime and corruption?

    For the record – I for one am opposed to ‘three strikes and out’ for violent crime.

    I am not opposed to Judges being able to exercise ‘judicial discretion’ as long as it is based upon the ‘Rule of Law’, and there is some mechanism in place in order to help ensure more judicial consistency in sentencing.

    At the moment – in my considered opinion – NZ Judges are effectively ‘out of control’.

    There is no enforceable ‘Code of Conduct’ for NZ Judges.
    There is no ‘Register of Pecuniary Interests’ for NZ Judges.

    Court proceedings are regularly not recorded.

    (How can a ‘court of record’ – not keep a record?
    How can ‘justice be done or be seen to be done’ – when there is no record in court of WHAT was done? )

    Penny Bright
    Independent Public Watchdog
    Candidate for Epsom

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  156. Rodders (1,790 comments) says:

    Difficult to get statistics on what happened to $158,000 as well.

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  157. Scott Chris (5,875 comments) says:

    Pauleastbay

    No one is forcing you to read what I say Paul. You plainly don’t understand much of it. You and Elaycee are starting to sound much alike.

    Prove me wrong, and tell me in your own words the definition of common law within a historical context.

    I’m not expecting a reply.

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  158. Scott Chris (5,875 comments) says:

    Ha, lofty, big bruv and paulestbay.

    Wow I’m really flattered by this illustrious trio of opinions. Seeing as your all here and reading my comments, perhaps you’d like to start a fanclub ;)

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  159. lofty (1,303 comments) says:

    Jeeze I woould rather start a Penny Bright fanclub thanks..Penny may well be mucho grato delusionato but at least she stays on her message.
    You on the other hand……………………….

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  160. Scott Chris (5,875 comments) says:

    FE Smith

    I will concede *one* thing only, as I measure my selfworth by the simple standard of admitting error. (Yes I know, whoop-de-doo). My whimsical theory that common law had it’s origins in the iron age or beyond was wrong, and that case law did originate with the Germanic tribes in post Roman Britain. (Of course you didn’t learn that today eh Smithy?)

    Roman ideas of jurisprudence had an influence on English and Scottish law as a whole, but obviously not on common law.

    Why you got pissed off that I speculated that Roman tablet law affected common law is a mystery to me. It was easily refuted.

    Doesn’t affect my assertion that each piece of case law contains the seed from which all case law has evolved. It really can’t be any other way, hence that bit of Lao Tzu I posted.

    So looking at it as critically as I can, I can still find no logical flaw with:

    “Its hard to look past the fact that common law is all based on what some guy just made up on the spur of the moment originally. ”
    ______________________________________________________________________________________________________

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  161. bhudson (4,734 comments) says:

    Has no one noticed that, while Scott Chris was sitting beneath his bridge arguing, obfuscating, deflecting and generally dissembling, the conversation has veered completely away from highlighting that Labour are campaigning on the policy of letting the most violent, recidivist offenders ‘walk’ sooner????

    SC has been managing the “trip, trapping” all day.

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  162. Scott Chris (5,875 comments) says:

    Mikenmild says:- “In essence, a judge embodies the will of the community. A judge that departs markedly from a community’s common values would so be a judge no longer.”

    Well at least you bothered to read what I was writing. However, funnily enough, I disagree.

    What you are saying is more speculative than what I am saying, as you are making more assumptions about post roman society than I, unless you know a lot more about the history of Germanic tribal pluralistic common law than I’m giving you credit for. They were called the “dark ages” for a good reason.

    As I stated to F E Smith, the original seed must have been sewn somewhere, and the original case judgments, through Dawkins meme theory survived. May well have been been lost and reinvented, but *someone had to be first*

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  163. Scott Chris (5,875 comments) says:

    bhudson says:- “SC has been managing the “trip, trapping” all day.”

    It’s simple. I’m not a troll. I like debating like some people like playing computer games. I spent 3 years addicted to Command and Conquer online until everyone pissed off to play Warcraft. Now I get a more cerebral buzz from debating.

    Calling me a troll is like waving a red flag in front of a goat, so I look forward to tangling with you in the future bhudson.

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  164. The Scorned (719 comments) says:

    3 strikes keeps repeat,violent criminals off the streets and away from decent people longer than was previously the case…all that matters….the end.

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  165. bhudson (4,734 comments) says:

    SC,

    I fear the only evidence of your debating is the mess on your keyboard

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  166. Scott Chris (5,875 comments) says:

    bhudson says:- “I fear the only evidence of your debating is the mess on your keyboard”

    Nah, I use paper towels. Now now, don’t feed the troll.

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  167. weizguy (120 comments) says:

    David Garrett

    “When will the exponential rise BEGIN Kim? Will we see the prison numbers taking off prior to the NEXT election. The election after that?”; and
    “Still waiting for Kim Workman to come in and tell us when the dramatic rise he predicted in prisoner numbers will occur as a result of 3S, and about when exactly we can expect them to triple, as he also predicted…

    Don’t be disingenuous David – we know that:

    - you claimed that three strikes would have saved upwards of 70 lives
    - you sat on the select committee that heard how the prison population would more than double OVER 50 YEARS directly as a result of the original 3 strikes construction
    - you participated in the horse-trading that significantly reduced the scope of three strikes, yet continued to use the original figures for lives that would have been saved
    - you know that the evidence of any deterrent effect was (at best) weak, and that there was evidence to suggest that the policy may actually result in more deaths (before the Ministry of Justice was told that they, the experts, would no longer be providing support to the committee).
    - you know that 3 strikes has not been in force long enough to provide any meaningful effect on the crime rate through incarceration.

    In other words, you know the answers to the questions you are asking Kim Workman, and you know that the drop in the prison population has nothing to do with three strikes.

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  168. Mick Mac (1,091 comments) says:

    Mikenmild says:- “In essence, a judge embodies the will of the community. A judge that departs markedly from a community’s common values would so be a judge no longer.”

    not so with our judiciary.
    In the dompost this am, pharmacists commits 90 thefts but gets home detention, another crim already paying reparations for crimes commits theft and gets home detention.I have lost my respect and trust in the judiciary.

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