Guest Post: Incarceration beyond sentence for habitual sex offenders – deeply problematic but necessary
April 12th, 2012 at 9:00 am by David FarrarA guest post by David Garrett:
The case of Stuart Murray Wilson – the so called “beast of Bleheim” – has prompted the National led government to finally grasp one of the most difficult of legal nettles. Our entire judicial system is based on “do the crime, do the time”, and no imprisonment for what one might do in the future. But what do we do with individuals like Wilson or Lloyd MacIntosh – habitual sex offenders who everyone, including experts retained on their behalf, agrees will – not might – inevitably reoffend on release?
The problem is not new, and unless or until medical science advances significantly, habitual sex offenders who constitute a serious risk – regardless of advanced age – will always be with us.
Stanley McKissock Reid committed sex offences including rape in the 1920’s, and served a lengthy term of imprisonment. Despite his file being marked “Never to be released”, he was, and Reid then raped and killed Lila Hammond in 1944. But for an accident of history – a temporary moratorium on capital punishment – Reid would have been hanged and forgotten.
During his time in jail, there were several attempts to “rehabilitate” Reid, including work placements at Burnham Army Camp near Christchurch. Whenever he was around women, Reid could not stop himself from sexually assaulting them, so he stayed in jail. By the 1980’s Reid was in his 80’s, and there was considerable agitation from well meaning do-gooders to let “poor old Stan” live the remainder of his life in the community.
Reid was released from jail in the mid 1980’s aged 83. He was sent to live with a community of nuns, where, about six weeks after his release, he tried to rape one of them. Fortunately the nun was able to overpower him. Showing considerably more insight than the do-gooders, Reid told her that he had “always been a bad bastard”.
The oldest prisoner in jail in New Zealand is an 85 year old paedophile held in maximum security at Auckland prison. He is still considered to be a serious risk to children, and is unlikely to ever be released. The authorities can hold him indefinitely because he is serving a life sentence.
Lloyd McIntosh, a habitual paedophile who is described as “New Zealand’s most dangerous sex offender”, is much more problematic. McIntosh was sentenced to ten years in 1993 for sexually assaulting a nine month old baby. He served the full sentence, and shortly after his release in 2003, sexually assaulted and raped a two year old boy. Although he had been offending since he was a child, the authorities then finally woke up to the reality that in McIntosh, they had an offender who was almost without parallel.
In 2005, McIntosh became the first person to be subject to a ten year supervision order. Initially, by agreement, he lived in a house within the grounds of Rolleston prison, but the following year he was allowed to leave the prison grounds subject to electronic monitoring and close supervision. Given the consensus among “the experts” that he will never be less than a serious risk, it is somewhat remarkable that he has not reoffended since 2006 – or at least he has not been caught. From 2015, McIntosh will be free of all constraints, and given his history, it can then only be a matter of time before he reoffends.
So what can and should we do with people like Wilson and McIntosh, or the ten or a dozen similar offenders identified by the authorities? As in most matters penal, the United States grasped this particularly difficult nettle ten or twenty years ago, with laws requiring notification of communities into which habitual sex offenders are released, and for the worst of the worst, pre-emptive incarceration.
Coalinga state prison is a unique institution designed for those designated “Sexually Violent Predators – offenders who the state has determined are simply too dangerous to be released after completing their prison sentences. They constitute perhaps 2% of incarcerated sex offenders. Given the very small number of offenders such as McIntosh and Wilson identified here in New Zealand, the percentage is likely to be similar in this country.
Inmates at Coalinga have considerably more freedom that at a normal prison. They are allowed to move around the prison concourse freely. There is a “mall” with shops, such as a barbershop, a grill, and a canteen. Those prisoners who wish to can participate in various psychological therapy programmes. Significantly, the majority of inmates refuse to undertake any treatment. They do not think there is anything wrong with them. Those inmates have effectively selected themselves as members of the category of prisoners who will never be released.
To be fair, neither will most of the rest, treatment or no treatment. The Americans at least have accepted that there is a small but highly dangerous category of sex offender who will always be too much of a danger to society, no matter what “treatment” they undergo. It seems that the National led government – probably at the instigation of Justice Minister Collins – has at last woken up to the same realization.
There are of course numerous good philosophical and moral reasons not to lock people up for what they might or - even definitely will – do in the future. No doubt we will hear many of those arguments in comments on this post. But for me, the issue is relatively straightforward. Once an offender has been conclusively identified as a person who will never be safe around the vulnerable – particularly children - their “rights” very much take second place to the rights of children to play, or even to sleep, without a Lloyd McIntosh waiting for his chance to grab them and commit unspeakable crimes.
Some very interesting history there from NZ’s past, and also on what happens in the US.
Andrew Geddis at Pundit has posted on the issue also, detailing some of the issues involved.
Related posts:
- National to end parole for the worst violent offenders
- Tracking Offenders
- Guest Post on Three Strikes law
- No parole for Capill
April 12th, 2012 at 9:20 am
What a choice:
Little rubber ring and applicator (cost 2 cents for ring & one off cost of around $15 for the applicator from RD1)
OR
Spend $30,000 a year and/or trample on hard won freedoms to lock them up in jail indefinitely for possible ‘ future’ crimes.
OR
As Mr Garrett points out build a special purpose prison camp/town to incarcerate as above at a cost of say $100,000 per prisoner.
What a difficult choice, I just dunno which one is the best to do……………..hmmmm
Vote:April 12th, 2012 at 9:20 am
People like that should get preventive detention.
Vote:April 12th, 2012 at 9:30 am
I have just read Geddis’ somewhat verbose piece – written in his usual scathing tone – on this issue. For a law professor – albeit at a second rate law school – he seems extraordinarily poorly informed.
Are the names of the “mystery” offenders Judith Collins is referring to really such a mystery to him? If he hasnt heard of Lloyd McIntosh – referred to in my piece above – then I suggest he does some more research. Incidentally DPF, you suggest my piece is more historical than contemporary. McIntosh is very much part of New Zealand’s present and future, not the past. (Although I am certainly glad Stanley McKissock Reid is part of the increasingly distant past and no longer with us.) McIntosh is surely worse – at least Reid did not sexually abuse and rape babies.
Geddis is also surely aware of details of the criminal history and identiy 85 year old paedophile held in Pareroremo because he is still seen as too dangerous to release. I know no more about that individual than has been publicly reported because of the offenders right to privacy. Someone in Geddis’ position would know much more.
Geddis appears to suggest that it is by no means certain that Wilson will reoffend. That opinion is directly contrary to every other expert who has examined the man – although perhaps that great penal innovator Kim Workman may take him in and help him with some useful bible study. That might set him right.
Vote:April 12th, 2012 at 9:33 am
The Death Penalty would be a good solution to this problem.
Vote:April 12th, 2012 at 9:36 am
Excellent post David. Retrospective legislation should be a last resort. But as I posted when DPF blogged about this matter last week, I would far rather that Stewart Murray Wilson’s rights be violated than those of his next rape victim.
Vote:April 12th, 2012 at 9:36 am
Jim: Quite apart from the “human rights” issues your ‘rubber ring’ idea raises, castration – whether physical or chemical – has proved largely ineffective in controlling offenders such as Wilson and McIntosh. They could of course be permanently drugged so as to dull if not eliminate their libido, but there will be a cavalcade of defenders of such offenders’ human rights here shortly to ‘explain’ to us dullards why that is not an option either.
Vote:April 12th, 2012 at 9:39 am
All this is well and good – assuming you can tell with exactitude who will and who will not reoffend upon release. And when it comes to serious sexual or violent offending, this is at best an educated guess – even the most accurate forms of assessment have comparatively high “false positives” (i.e. predictions that someone definitely will reoffend, when they actually wouldn’t). So, as David Garrett himself notes:
“In 2005, McIntosh became the first person to be subject to a ten year supervision order. Initially, by agreement, he lived in a house within the grounds of Rolleston prison, but the following year he was allowed to leave the prison grounds subject to electronic monitoring and close supervision. Given the consensus among “the experts” that he will never be less than a serious risk, it is somewhat remarkable that he has not reoffended since 2006 – or at least he has not been caught. ”
Thus, even this poster boy for permanent incarceration … hasn’t done what “the experts” said he would. Hence, HAD he been kept in prison (because of what “the experts” said he would do), we would have locked up someone for the last 6 years for no reason at all. So what the argument really boils down to is, “if you give us enough reason to think you are going to do a bad thing (based primarily on what other people we think are like you have/have not done), then we can lock you up for as long as we want to … even though there is a pretty high likelihood you actually won’t do the bad thing that we think you will.” Which is an … interesting approach for the State to take towards its citizens.
Vote:April 12th, 2012 at 9:42 am
Mark may have got it right when he stated “people like that”. Is addiction to deviant sex a crime or a mental affliction?
It makes no great difference on one level…..society has an absolute right to expect that these people should be removed from our midst given the certainty that they will reoffend. What is debatable is whether they should spend the rest of their lives in prison (preventative detention as we know it) or in a secure yet humane psychiatric facility.
I personally favour the latter.
Vote:April 12th, 2012 at 9:45 am
Well Geddis, no doubt you will be back here to defend your argument (sorry, ‘thesis’, you are an academic) when both Wilson and McIntosh offend again. You huffed and puffed with righteous indignation about the effects on my ‘victims’ from the passport business of 28 years ago; perhaps you will be equally fulsome when McIntosh next rapes a live baby rather than uses the identity of a dead one.
Vote:April 12th, 2012 at 9:45 am
China doesn’t seem to have a problem dealing with such offenders – perhaps we could learn a lesson from our trading partners?
A short (escorted) walk onto the beach at low tide / a brief sit down on a wooden chair and a quick date with Remington. The incoming tide does the cleaning.
Problem gone. Low cost and a very permanent solution.
Cue the bleeding hearts….
Vote:April 12th, 2012 at 9:49 am
“I have just read Geddis’ somewhat verbose piece – written in his usual scathing tone – on this issue. For a law professor – albeit at a second rate law school – he seems extraordinarily poorly informed.”
I would have though you, of all people, would think twice about reducing this debate to the level of personal attacks … unless you want your own qualifications and history to become the basis on which your arguments are judged?
Oh – and as for Otago being “second rate”, that may be so. But given that it ranks higher than Canterbury on all attempted measures of quality (even pre-Earthquake), I’d be a bit hesitant about raising that issue: see http://my.lawsociety.org.nz/in_practice/information_for_new_lawyers/legal_education/new_zealand_law_school_rankings
Vote:April 12th, 2012 at 9:50 am
I still don’t understand how we can accept that experts’ predictions are fallible, then lock someone up on the basis of fallible predictions. Surely the better option is strict supervision rather than incarceration?
Vote:April 12th, 2012 at 9:52 am
“You huffed and puffed with righteous indignation about the effects on my ‘victims’ from the passport business of 28 years ago”
Oh, so you *do* have a grudge. Lol.
Vote:April 12th, 2012 at 10:00 am
Geddis: Your vicious personal attacks on me are a matter of public record. Incidentally, why dont you post here under your own name, when your own echo chamber of liberal pointy heads says that you prefer commenters to use their own name? (And a commendable policy it is too). I had no idea that ‘AG’ was you, but then I am proudly not a member of the chattering classes.
But just to get the “qualifications” red herring out of the way, I have no doubt that you have a lengthy list of degrees which put my modest LL.B (Hons) to shame.
How nice it must be to be an academic, positing theories about crime and criminals at nice gatherings with like minded people at naice parties in Maori Hill, (or whichever naice part of Dunedin you live in) while never actually having to MEET the victims of the criminals you loftily opine about. You should try meeting some victims some time. But it’s bloody hard – perhaps you dont have the courage?
Vote:April 12th, 2012 at 10:02 am
This is a good post. It sets out most of the issues. For me, it comes down to balance. Do we want to take the next step beyond the extended supervision orders and retrospectively imprison someone on the basis of crimes that we think (but cannot be certain) he will commit?
Vote:Is this really our only option? Could we look at more stringent parole and supervision conditions, for example?
April 12th, 2012 at 10:03 am
Trying to ‘rehabilitate’ a pedophile would be like trying to convert a heterosexual into a homosexual. Maybe you can try and train pedophiles to curb their impulses, but that would be like training a heterosexual to curb their impulses .
In my opinion protecting society is foremost. We should give pedophiles the option of life in jail or castration with a lesser jail sentence. Then , hopefully this means they never have children who could inherit their faulty genetics and social conditioning.
Vote:April 12th, 2012 at 10:04 am
@AG
And I would think that somebody complaining about about an ‘ad hominem’ wouldn’t use an ‘argumentum ad verecundiam’.
Vote:April 12th, 2012 at 10:04 am
Preventive detention is the option that should be used in these cases and enforced as it is meant to be. Whilst the US is no beacon of light in terms of providing blueprints for NZ prison reform the concept of keeping predatory sex offenders in jail for life is an option that NZ has to consider.
Vote:April 12th, 2012 at 10:05 am
irony-overload-alert..!
garrett:..”..Your vicious personal attacks on me are a matter of public record.”
did he try to dob you in…?
..make up lies about you..?
..awww..!!!..eh..?
phillip ure@whoar.co.nz
Vote:April 12th, 2012 at 10:06 am
David/AG
Vote:It’d be nice to see you discuss this policy rather than hassling each other personally. You both have a lot to offer to the debate.
April 12th, 2012 at 10:12 am
If you’d care to cite “vicious personal attacks” that you feel were unjustified, I’m happy to either defend them or apologise.
I don’t post here under my own name so that any comments I make don’t show up on a google search … simple really. But as you can see, I don’t care if people know/don’t know who I am … nor do I care whether other commentators do so openly or anonymously. I happen to think it’s the arguments that matter, not who is making them (and I’d just note, you were the one to start personalising the discussion here).
I’m not standing on my qualifications in any way – I again note you were the one to say “For a law professor – albeit at a second rate law school – he seems extraordinarily poorly informed.” If the quality of the institution doesn’t matter, why did you raise it?
And yes, yes … I know only “real people” can have views on how the government ought to police its citizens. But seeing as you know nothing of me, or my personal circumstances, and that crime touches all sorts of people in our society, I’m going to just ignore your attempted taunts.
But enough of our little spat. There’s a deeper principle at issue here – should the state be allowed to permanently remove the liberty of individuals based on a set of predictions that have consistently been shown to be inaccurate (in at least some cases)? Shouldn’t THAT be what we’re arguing about here, rather than trying to score points off each other individually … after all, we’re not in the House any more, are we?
Vote:April 12th, 2012 at 10:14 am
Wreck: The point you make is exactly the one I was trying to make – albeit very poorly because I had been drinking- in the now infamous TV debate some months before the 2008 election.
There is growing evidence that paedophilia is a sexual orientation, just as is heterosexuality and homosexuality. Attempts to ‘cure’ homosexuals of their “disease” – it was so classified in DSM I up until the 1960′s – were as fruitless as attempts to make me into a homosexual or a paedophile would be. Quite simply I am not aroused by men or children, and never could be.
If you have a look at http://www.informant.kalnews.org/2011/01 can-sexual-predators-be-rehabilitated/ [sorry, I dont know how to do links] you will find some interesting interviews with inmates of Coalinga. Those with the best chance of eventual release are those who recognise that they cannot ever be cured (the rest of the world largely accepts that, here in New Zealand some still think we can), but merely taught to manage the impulses they will always have.
Vote:April 12th, 2012 at 10:20 am
You were never ‘in the House’ Geddis….it’s a much too robust place for the likes of you.
But to the issue you raise. The answer in my view is YES. If there is overwhelming evidence – actually something between the balance of probabilities and beyond reasonable doubt – then YES the state, under the social contract with its citizens under which it agrees to protect us – is more than justifield locking people like Wilson and McIntosh up based on what they might do.
Incidentally, your post at 9.38 contains a classic non sequitur. McIntosh was not “primarily” locked up on the basis on what people like him had done or might do, but on the basis of HIS OWN past history. Very important distinction.
Vote:April 12th, 2012 at 10:22 am
Sod off Phil; this is a serious thread.
Vote:April 12th, 2012 at 10:24 am
sorry…there is a missing “….will do – ” which should have come after “..reasonable doubt” in my earlier post.
Vote:April 12th, 2012 at 10:28 am
Can we have comments based on the issues in the post/s rather than on the authors themselves – both of whom I thinkmake valuable,but differing, contributions to debates in this area.
Vote:April 12th, 2012 at 10:38 am
DPF: Sure. I think we have both unloaded sufficiently anyway! But may I ask why Phil is allowed to do little else but insult other commenters constantly?
Vote:April 12th, 2012 at 10:40 am
“Incidentally, your post at 9.38 contains a classic non sequitur. McIntosh was not “primarily” locked up on the basis on what people like him had done or might do, but on the basis of HIS OWN past history. Very important distinction.”
I agree it’s a very important distinction – I don’t see anyone here arguing that McIntosh should not have been incarcerated for his crimes (as a punishment, deterrence, to protect the community and to try and make him safe to reenter the community). The question is, when that period of incarceration imposed in response to the crimes he committed ends, should the state be allowed to extend it beyond the period that a court said (under law) he must serve PURELY BECAUSE HE WILL COMMIT MORE CRIMES (according to the “experts” who assess him … even though they will in a non-trivial number of cases be wrong about that).
Now, there’s (at least) two potential problems with that. First up, you are after-the-fact changing the sentence that the court imposed on an offender based on the law at the time the offence was committed. Which is inconsistent with the rule of law. Second, you are (it has to be repeated) going to keep in jail (or, at least, under conditions of detention) some individuals who will not do anything bad. And should the state be allowed to create such “collateral damage” in its attempts to keep its citizens safe – how is it any different to (say) the accidental shooting of Halatau Naitoko by the AOS? Should we just shrug that off, too, and say “so long as the state has a good motive for its actions, if some individuals get hurt along the way then that’s just bad luck”?
Finally, how far do you want to take this “we know some people will do bad things, so we shouldn’t have to wait for them to do it before punishing them” approach? Take this example – http://www.stuff.co.nz/national/crime/6727315/Shock-over-11-year-old-burglar … given the high likelihood he will continue committing crimes, shouldn’t we just lock him up now?
Vote:April 12th, 2012 at 10:49 am
First offence – 20 years and the rubber ring. Second offence – face to face chat with counsellors Smith and Wesson. Problem solved.
Vote:April 12th, 2012 at 10:53 am
“how is it any different to (say) the accidental shooting of Halatau Naitoko by the AOS?”
That should be self evident. Halatau Naitoko was not only 100% innocent and had no history of criminal offending but was a good person. The people we are talking about are evil and are at a high risk of causing serious harm to innocent children. I happen to beleive in good and evil.
I wonder if Wilson or MacIntosh could be incarcerated using existing mental health legislation?
Vote:April 12th, 2012 at 10:53 am
The safety of the community becomes the dominant consideration over the rights of the individual. This is against a background where considerable harm has already been done to the community and there is no let up on the risk they present. Most people turn about age 30 but there are a few hardcore offenders who will never change and present an on going risk Judith Collins is rIght to pursue this against hard core sex offenders and the violent repeat offenders.
Vote:April 12th, 2012 at 10:58 am
Louis Theroux has a good documentary set at Coalinga, where he talks freely with the inmates.
what is disturbing about how it works is that everyone there has served their sentence and been paroled/freed. but they are now in this halfway hell. they are not sentenced to the place but cannot leave until they do more stuff that the place requires. if they don;t then they are there for life.
i see both sides of the argument, on one side these men have served their time that was sentenced to them and this is another sentence that seems to be an infringement on the principal of serving your time. on the other hand, unlike burglarly or tax fraud, sexual crimes are often more deeprooted and simple time may not solve the issue, so how do you preemptively keep society safe?
very sticky situation.
AG, we already have other pre crime in NZ, speed limits and blood alcohol limits are already precrime based on what you are more likely to do. so on that basis NZ is already ok with the idea of locking someone up based on what they might do.
my take is that there has to be a balance. if someone has served their time, they need to be freed. however on certain crimes the state should be allowed to put a freedom rider, which states that if you are still likely to commit crime they can rescind your freedom either before you are released or even while released. you need to show (somehow, dont ask me how) that you are not going to commit another offence.
its a massive intrusion into privacy etc and will almost certainly be abused, but some people are just deep down wrong and we need a way to ensure that those people never see the light of day again. (graham burton being one, this beast of blenheim seems like another).
Vote:April 12th, 2012 at 11:03 am
Chuck,
What if Naitoko had been (say) a member of Black Power with a number of convictions to his name, who just happened to be in the car behind Stephen McDonald (i.e. not connected to his crime in any way)? Would you approach then be “oh well – he was a bad person anyway, so if the police happen to kill him then there is nothing to worry about”? The point being, are you really wanting to divide society up into “good” people (who should be protected from the state by “rights”) and “evil” people (who you can do what you want to, if it makes things better for all the “good” people out there)? And if you DO want to do this, you do realise that others may have somewhat different ideas about what makes a “good” and “evil” person – for example, how do you think the Greens might divide up the populace when they (inevitably) become the government? How secure do you think the rights of (say) dairy farmers and venture capitalists will be then?
As for the use of mental health legislation … no. Otherwise they wouldn’t be in prison in the first place.
tvb,
If you really think that “The safety of the community becomes the dominant consideration over the rights of the individual”, then what is wrong with locking up the 11 year old burglar for the rest of his life?
Vote:April 12th, 2012 at 11:07 am
AG: I feel you are simply repeating the arguments you have already raised. You put the position accurately: the law would incarcerate people because of the risk of what they might do in the future – based upon their own past performance, and the current state of knowledge of what such people will probably (I use that word knowing you will seize on it) will do in the future if they are allowed to return unhindered to the community.
Chuck Bird has already deftly pointed out the flaws in your comparison with the Naitoko shooting, which just for the record, I think was a disgrace, and the time it has taken to release the report has compounded the wrong done to the family and the unfortunate victim.
You refer to that hackneyed phrase “the rule of law” as if that alone is an argument against this proposal. Well, correct me if I am wrong, but as I understand it, “the rule of law” – at least in non academic language – means that no-one may be arbitrarily detained arrested or punished except in accordance with a validly passed law. The classic example is of course the Gestapo throwing people in jail or worse becasue they were “denounced” by their neighbours or were homosexual, or Pol Pot and the boys shooting people because they wore glasses.
If this law is passed, and clearly sets out in what circumstances a person like Wilson or McIntosh can be indefinitely detained, how does that breach “the rule of law” ?
Vote:April 12th, 2012 at 11:08 am
“AG, we already have other pre crime in NZ, speed limits and blood alcohol limits are already precrime based on what you are more likely to do. so on that basis NZ is already ok with the idea of locking someone up based on what they might do.”
Not quite – these offences work on the basis that “if you do X, then the risk of doing harm is increased … so don’t do X”. But you can still avoid any punishment/consequences by not doing X. These proposed orders are the equivalent of the state saying “because we judge you likely to speed/drink (based upon what others who are like you have/have not done), we are not going to let you have a driver’s license.” Or, rather, retrospectively changing the rules to say that if you’ve had a speeding ticket in the past, you will lose your license now because the state thinks (based upon what others who are like you have/have not done) you likely will speed again.
Vote:April 12th, 2012 at 11:16 am
David,
If I’m just repeating myself, it’s because it appeared you didn’t see my argument first time around (as where you said I’d committed “a classic non sequitur”). If I misunderstood your comment, sorry.
As for “If this law is passed, and clearly sets out in what circumstances a person like Wilson or McIntosh can be indefinitely detained, how does that breach “the rule of law”?”, that’s all well and good. But my argument is that even passing such a law is wrong, because you are making someone liable to consequences that they couldn’t know about at the time of committing the offence. And one of the characteristics of the rule of law is that you ought to be able to know what it is, and how it applies to you, at the time you act.
Put it another way – if the Greens (when they become part of the government) push through a law to say that any dairy farmer who has in the last decade cut down more than 10 hectares of trees as part of their dairy conversion can be jailed for 10 years, does the fact that this is a law passed by Parliament and validly entered onto the statute book make the arrest, trial, conviction and jailing of such dairy farmers OK?
Vote:April 12th, 2012 at 11:31 am
AG: two points there. Firstly there is no doubt that such a law would be unknown to the offender (because it had not been passed) at the time he (they are almost always males) committed his last crime. I accept that. But again, I think you need to personalise it, and come down off the Ivory Tower – although you would disagree.
Would YOU like to be the person who explains to the parents of McIntoshes next victim that he couldn’t be detained despite his record because to have done so would have breached an aspect – albeit an important one – of the rule of law? Good luck with that.
Secondly, your analogy re the Greens and the farmer is faulty. In the case you cite, the farmer would have been punished ex post facto for something that wasnt illegal at the time he did it. In this case, McIntosh or Wilson – let’s stick with just them for now – are being PREVENTED from doing something on the basis of things (more than one) they have already done. Again, a fine distinction but a very important one.
To be valid, and fit the instant case, the law in question would have to punish Wilson or McIntosh for a second time for their PAST actions. Even I – educated redneck that I am – would have some difficulty with that.
Vote:April 12th, 2012 at 11:36 am
“As for the use of mental health legislation … no. Otherwise they wouldn’t be in prison in the first place.”
AG, do you not see the difference between the mental health of a person who violently sexually abuses children and someone who comments a crime to make money?
I am a simple person. I beleive if there is a conflict between ideology and common sense I will go for common sense every time. Common sense says that a person who has committed a number of serious crimes and nearly all experts agree there is a very high likelihood of him harming a young child again should stay in jail. If you have young children or had young grandchildren visiting often would you be happy for him to be your next door neighbour?
Common sense dictates that the scum bag that burned his wife alive while his 4 year old son was present should never got out of jail. However, clever lawyers who I pay out of my taxes will make all sort of excuses for this oxygen thief.
Vote:April 12th, 2012 at 11:44 am
FWIW this leftie has no problem with indefinite / pre-emptive / preventative detention for certain types of criminals.
PROVIDED
Such detention is part of sentencing right after conviction. Keep it all upfront and transparent.
The State shouldn’t sentence someone to XX years in jail for doing YY crime, and then once XX years are up turn around and say “LOL just kidding, we’ve decided you’re not going anywhere sunshine!”
Vote:April 12th, 2012 at 11:46 am
The Mental Health (Compulsory Assessment and Treatment) Act 1992 allows the mentally ill to be detained for treatment under a compulsory treatment orders.
If we accept that sexual aggression/compulsion is the manifestation of mental illness or severe pathology, can we not detain these people under the Mental Health Act?
Vote:April 12th, 2012 at 11:49 am
Pedophiles can never be rehabilitated with any degree of confidence. They have a sexual urge to molest children and no amount of “counseling” can remove that urge.
No amount of “counseling” will stop a heterosexual male always desiring women, so why do the “do-gooders” think they can effect a change in the sexual orientation of pedophiles?
Indeed history has show that when attempts were made to “turn” homosexuals into heterosexuals, it was a failure.
The “do-gooders” are mad to believe that they can halt a pedophiles sexual urges.
Vote:April 12th, 2012 at 11:51 am
@david
I agree with Mark, RRM (partly) and gump.
Vote:Wasn’t preventative detention set up for cases like this?
What is the difference between your proposal and preventative detention?
Can’t preventative detention be applied retrospectively?
April 12th, 2012 at 11:52 am
The Japanese have a half-way-house situation for repeat driving offenders, which involves a level of incarceration and forced rehabilitation and shame. Given that sexual crime is an issue or morality and social harm (as we have defined it morally) perhaps with a level of pathology attached (the same argument some politicised gays use, “we’re born this way,” “its a special gene) then maybe something like this is needed in NZ.
The Aussies are doing it for illegal immigrants.
Vote:April 12th, 2012 at 11:52 am
It’s my understanding that the treatment programmes available to not attempt to ‘cure’ individuals. They are designed more at teaching people to change their behaviour – keeping themselves safe from further imprisonment as it were. These programmes seem to have been quite successful.
Vote:April 12th, 2012 at 11:54 am
O_A
Vote:I believe Wilson was acquitted on the only charge he faced that could have brought a sentence of preventive detention, which cannot be applied retrospectively.
April 12th, 2012 at 11:58 am
My understanding is that because he was a first offender PD was not available however the law has subsequently been changed in that regard. A preventative detention sentence would have been the appropriate solution had it been available. THe prison sentence is the punishment, the PD is the further protection of society
Vote:April 12th, 2012 at 11:58 am
David Garrett,
Would YOU like to be the person who explains to the parents of McIntoshes next victim that he couldn’t be detained…
Surely you aren’t going to base your argument on an appeal to emotion rather than a valid logical argument.
I agree certain types of offenders should be considered for indefinite incarceration if they are deemed an ongoing risk. But only if this sentence is imposed in the first instance based on the law at the time the offending occurred. Retrospectively applying a new sentence is exactly what AG says it is: you’re dividing the populace up into “good” people and “bad” people and allowing the government to do whatever it likes to the “bad” people, the rule of law be damned.
Vote:April 12th, 2012 at 11:59 am
David,
The thing about principles (like the Rule of Law … see, I capitalised it!) is that they are meant to be inconvenient. If we only abide by them when it is easy, then they are not really worth very much, are they? Now, you may say “yes – but in this case the reasons for departing from the Rule of Law are SO good that it justifies the measure – just think of the future victims!” Which is fine, but just note the reasons for departing from the rule of law may not always be to your liking … in my farmer example, a hard-core Greenie could (and probably would) say that anyone should just know that chopping down lots of trees to create land for dairy cows is such a heinous crime against Gaia that just because it wasn’t on the statute books at the time is no reason not to punish that crime now. The farmers just ought to have known how wrong their actions were and not done them. Or – remember the retrospective validation of Labour’s election overspending at the 2005 election – the Government had “good reasons” to retrospectively change the law in that case, too.
Second, I think it is splitting hairs to on the one hand say “we are now going to indefinitely jail/detain Wilson and McIntosh because of their past actions (and predictions, faulty as these may be, of their future ones” and then also say “but we’re not punishing them twice for what they have done”. Rather than go over the arguments here, I’d just point you to Chris FInalyson’s s7 notice on the Extended Parole Orders Amendment Bill back in 2009.
Finally, why personalise it with Wilson/McIntosh … any law won’t be passed in time to catch Wilson before his release (and, as you note, McIntosh has been in the community for 6 years now without offending). So this law won’t touch them, anyway.
Vote:April 12th, 2012 at 12:01 pm
This statement sums up David Garrett’s personality quite succinctly.
Vote:April 12th, 2012 at 12:01 pm
“Indeed history has show that when attempts were made to “turn” homosexuals into heterosexuals, it was a failure.”
In your not so humble opinion.
Vote:April 12th, 2012 at 12:03 pm
Gump: That is just the problem, as Geddis has alluded to. The Mental Health Act has a relatively narrow ambit. It is aimed primarily at persons with “mental illnesses” recognised by the psychiatric profession as liable to make them a danger to themselves or others. These include psychoses and various schizophrenias which may make a person carry out violent acts because of delusional beliefs (that they are sons of God or receiving instructions from the deity through their dog for example) or auditory or visual hallucinations.
By and large (I am eager for someone else with greater knowledge to enlarge on this), persons suffering from such illnesses can be controlled, usually by drugs. Psychopaths, persons with personality disorders, paedophiles and compulsive sex offenders like Wilson and McIntosh are not “mentally ill” in the sense comtemplated by the Act, although in the vernacular, they are certainly “sick bastards”.
And that of course is the whole point of this proposed legislation: to provide protection for society from persons who the law currently does not know how to deal with for the greater good.
For completeness I should add that to my astonishment, there are professionals in this country who think they can successfully treat psychopaths. Everywhere else in the western world it is recognised that not only are they incurable, but that treatment actually makes them worse, as they are usually intelligent, and able to learn the “right” answers to give in psychological tests. In a nutshell, that is why Graeme Burton was released in 2007 and thereby in the position kill Karl Kuckenbecker, and damn near kill two other people.
Vote:April 12th, 2012 at 12:04 pm
Analysis of statistical and expert assessment of future risk indicates that it is wrong more than half the time. Flipping a coin and saying “heads – this person will re-offend, let’s deny them parole” or “tails – this person won’t reoffend, let’s release them” would be more likely to be accurate.
Vote:April 12th, 2012 at 12:04 pm
@ RRM – I have some sympathy for that view. But unless he was psychic, the judge who sentenced Wilson in March 1996 would have had no way of knowing that not only would Wilson continue to deny his offending, but that he would not accept any treatment to address his offending and that, when asked by the Parole Board about “his ability to adhere to a condition that he have no contact with any child under the age of 16 years. Mr Wilson is recorded as having stated, “I don’t give a stuff about it”.”.
Wilson is highly likely to reoffend if he is released. As I said above, I would far rather that his civil rights be violated than those of the woman or girl he chooses to be his next victim. If ever a sentence of prevenative detention should have been imposed, it was in this case, and then this debate would be academic.
Vote:April 12th, 2012 at 12:23 pm
Chuck Bird (2,093) Says:
April 12th, 2012 at 12:01 pm
“Indeed history has show that when attempts were made to “turn” homosexuals into heterosexuals, it was a failure.”
In your not so humble opinion.
Yeah his and that of the World Health Organization, American Medical Association, American Psychiatric Association, the American Psychological Association, the American Counseling Association, the National Association of Social Workers, the American Academy of Pediatrics, the UK’s Royal College of Psychiatrists, the Australian Psychological Society etc.
Vote:April 12th, 2012 at 12:29 pm
Keeping Stock,
I would far rather that his civil rights be violated than those of the woman or girl he chooses to be his next victim.
You either have civil rights for everyone or you have them for no one. Again you are dividing up people into “good” or “bad” categories based on your own criteria and then saying it’s okay for the government to do whatever they want to the “bad” people. So much for the rule of law and due process.
If we let the government get away with this, then what’s to stop them from doing whatever they like if a criminal trial doesn’t pan out as they had hoped?
“Oh well we lost in court, but no matter, Parliament can just do whatever it likes”.
Vote:April 12th, 2012 at 12:39 pm
The argument seems to come down to either
a) person did what is seen as truly evil crime by society’s moral standards (which are used to set many of our laws) and is seen as a highly likely re-offender and as such we deem their civil rights less important than the perceived risk
b) the person has served their crime and as any predictions are, by definition, flawed and will have some errors further detention is punishment and affects their rights, which should be treated as sacrosanct as they are a fundamental principle
For the extreme end of offenses I for one believe people should be able to lose rights based on their previous actions and have no problem protecting the rest of society from them for what they may not do but don’t want the risk that they may do and yes it’s a slippery slope etc and how do you draw the line but we do that every day.
Vote:April 12th, 2012 at 12:42 pm
Weihana: Ah…on familiar territory, opposite sides! But we are now getting to the nub of argument. Fundamentally, you are saying (I am sure you will correct me if you disagree) “Everyone should have the same set of rights, no matter what they do”. I say “Human rights are for people who act like humans; if you commit sub-human acts then you have forfeited your right to at least some of the rights the rest of us take for granted”. Would you agree that states the division clearly?
I make no apology for saying that Wilson and McIntosh – by their own actions – have disqualifed themselves from enjoying all of the rights you and I take for granted. We actually accept that quite readily now: we accept that if I – say – commit a serious armed robbery (or a series of them) I should quite properly be deprived of my liberty for a while – thanks to 3S, for a lot longer potentially than before. Most people have no problem with that. We also accept (or most of us do) that such a person is no longer entitled to chose the food he is going to eat on what day, that he should be deprived of enjoying “dirty” magazines or DVD’s, particulary if one is a sex offender; and he is no longer able to have sex with whoever will have them for the duration of the sentence.
We once deprived persons who had transgressed of much more: we prescribed what they wore, how long their hair was allowed to be and such. Many other western jurisdictions still remove the right to privacy and other “human rights”.
And I can hear you saying “But who decides?” We already do that to: we appoint Judges to decide how long people should be deprived of some of the rights you and I have right now, and juries to decide whether they should be deprived of those rights at all. We have accepted those parts of a social contract for the running of a civil society for hundreds of years.
Vote:April 12th, 2012 at 12:48 pm
We are talking hard-core offenders who will never change and present on ongoing risk to the community. Obviously an 11 year old burglar one hopes he will turn, but if he becomes a career criminal then a lot of harm will be done to a lot of victims. These people exist but we tolerate them.
Vote:April 12th, 2012 at 12:49 pm
@ Weihana – it’s a dilemma, I know. But the reality is that Wilson cannot be held in custody for much longer without some legislation being enacted. I am not a fan of retrospective legislation in general. However one of the roles of the government is to protect its citizens. If my daugther’s life is made safer, or if someone from your whanau’s life is made safer by legislation being enacted to keep Wilson in custody, that’s a price that I am prepared to pay.
Vote:April 12th, 2012 at 12:56 pm
@David: “And I can hear you saying “But who decides?” We already do that to: we appoint Judges to decide how long people should be deprived of some of the rights you and I have right now, and juries to decide whether they should be deprived of those rights at all. We have accepted those parts of a social contract for the running of a civil society for hundreds of years.”
And now you are saying “but we’re going to revisit what the Judges said in some particular cases and impose a new, additional consequence of the offending on top of what the Judge said the law required at the time of sentencing.” Which seems somewhat at odds with “those parts of a social contract for the running of a civil society for hundreds of years” that you’ve just cited – in the immediate case, the decision on what rights a person ought to have is going to be made by elected MPs who are responding to the perceived wants of the voters who elected them.
Vote:April 12th, 2012 at 12:56 pm
If those who rape children are sick which they are why do we release any child rapists if there is any chance at all of them doing the same again ?
For example Capill, who sent an email to his religious followers stating that the sexual attack on one young child was consensual, what the hell is he doing out in society ?
May offend his rights, well he lost those when he attacked those children.
Vote:April 12th, 2012 at 1:07 pm
slijmbal,
For the extreme end of offenses I for one believe people should be able to lose rights based on their previous actions and have no problem protecting the rest of society from them for what they may not do but don’t want the risk that they may do and yes it’s a slippery slope etc and how do you draw the line but we do that every day.
But the problem is that you’re not just taking away their right to freedom (which is always conditional upon obeying the law), rather you are taking away their right to due process of law. No one should ever lose their right to due process because it is the only thing that stands between the public and the arbitrary rule of dictators.
The fact is he has been sentenced for the crime based on the law at the time. Now you’re unhappy with the result so you want to change the rules after the fact. So what’s to stop the government saying that drunk drivers are very bad people so everyone with a prior conviction has to go to jail now. Nevermind what the courts determined before based on what the law was. We don’t want to have to give the news to the parents of the next victim.
Why do we have courts at all if that should be the case?
The problem is this is not about drawing lines. What many of you are advocating is that there be no lines at all. The government can just do whatever it likes based on some popular notion of what is appropriate in any particular case. No longer should we have laws but we should have the arbitrary rule of men. That is unacceptable to me and inconsistent with a civil society.
Vote:April 12th, 2012 at 1:08 pm
Geddis: I fear you are creating some sort of “question” to which you already well know the answer. As they teach at law school (or at least the one I went to, in a course taught by the guy who wrote the textbook) at the end of the day “parliament is sovereign”; it is for parliament to make the laws and Judges to administer them. But you well know that. Or are you just testing whether I was listening to Prof. Joseph more than 20 years ago?
What is happening here is parliament – at the suggestion of the executive – is being asked to say “Look, [to quote your favourite retired politician] the law we have now does not adequately deal with this very small group of people. We used to execute them or simply lock them up forever from the outset, but we are more civilized now. So we are going to pass a new law which will allow us – as the makers of the law – to appoint a body of persons to decide when and to whom it is applied. That body of persons may be judges, but if we – as the representatives of the people – think another body is more appropriate then the law will provide for that”
May I ask – and not intending to offend – if you have children? I have found that one’s perspective on such issues changes radically when you do, particularly in my case, when it occurs unexpectedly, and later in life.
Vote:April 12th, 2012 at 1:18 pm
David Garrett,
I make no apology for saying that Wilson and McIntosh – by their own actions – have disqualifed themselves from
enjoying all of the rights you and I take for granted.
You’re conflating freedom with due process. Obviously a person’s freedom is conditional upon them obeying the law. But taking away a person’s right to due process is quite another thing entirely. Due process is the only thing that protects all those other rights.
I have no problem taking away the freedom of truly evil people indefinitely. But only following a fair process. The government enacting a law based on one case to change the result because they don’t like what the courts determined is not due process. It is the arbitrary rule of men and if they can do it in one case then they can do it in any case.
“…we appoint Judges to decide how long people should be deprived of some of the rights you and I have right now, and juries to decide whether they should be deprived of those rights at all. We have accepted those parts of a social contract for the running of a civil society for hundreds of years.”
Indeed, but those judgments are based on the law. In this case you want the law to be made up as we go along.
Vote:April 12th, 2012 at 1:25 pm
tvb,
We are talking hard-core offenders…
Who have been tried and sentenced for their crime(s). The judicial process has concluded and now people are unhappy so to hell with judicial process it seems. Lets just get rid of the courts and get the government to determine what’s reasonable in any particular case. Works well for China.
Vote:April 12th, 2012 at 1:28 pm
I like this. It bears repeating.
More people have a stake in this than just sex offenders and their victims.
New Zealand isn’t a police state. For Christ’s sake let’s keep it that way.
Vote:April 12th, 2012 at 1:35 pm
Weihana: I dont know what “conflating” means…and frankly I dont much care.
Even if this proposed law WAS “just for one man” – which is not the case – that would be nothing unusual. A good proportion of our law consists of “private” Acts of parliament, aimed at (usually) benefiting one person or a small class of persons.
I will agree though that under the law as it stands, Wilson could have been sentenced to preventive detention last time he was before a Judge. The fact is he wasnt. I am glad this government – and in particular this minister – is grasping a difficult nettle that has been in the too hard basket for far too long.
Vote:April 12th, 2012 at 1:36 pm
Well now let’s just wait a minute here.
David Garrett is being taken seriously?
Really?
*guffaws*
Vote:April 12th, 2012 at 1:46 pm
David:
If you’re trying to claim Philip Joseph as an unabashed advocate of Parliamentary Sovereignty, I suggest you have a look at what he has actually written in the intervening 20 years since you’ve studied with him. And if your position really is “so long as Parliament has enacted it, there is nothing wrong with any law”, please bookmark it so we can revisit it once Labour/Greens get back into Government. I’d hate to see you then turn around and start complaining about how they are failing to respect property rights, or failing to respect free speech, or the like. That might start to look a bit hypocritical.
Finally, as for your question: “May I ask – and not intending to offend – if you have children? I have found that one’s perspective on such issues changes radically when you do, particularly in my case, when it occurs unexpectedly, and later in life.” I’m not offended particularly, but I won’t answer it. I don’t think a commentator’s family status/history really should be a live issue in this debate. Let’s just deal with the issues at hand, rather than try to claim some sort of a superior personal vantage point to answering them (least we end up saying things we may later regret).
Vote:April 12th, 2012 at 1:49 pm
David Garrett (1,303) Says:
April 12th, 2012 at 1:35 pm
Weihana: I dont know what “conflating” means…and frankly I dont much care.
So why respond if you don’t care what I am saying? I mean you are combining two separate things to treat as a whole. It’s quite germane to the discussion I believe.
Even if this proposed law WAS “just for one man” – which is not the case – that would be nothing unusual. A good proportion of our law consists of “private” Acts of parliament, aimed at (usually) benefiting one person or a small class of persons.
Benefiting one person or a class of persons is not the same thing as taking away due process. This is not about equality as such, it’s about the fact that if the law is to have any meaning at all then people must have a right to due process. It is about the difference between a system of laws and a system of men; a system based on principle and a system based on the arbitrary rule of dictators.
The fear is not that one particular person will be affected. I could care less about the individual involved. Obviously he is scum and it is inevitable that cases like these are the ones which threaten fundamental principles of justice because emotion encourages us to make a decision based on one particular case rather than taking a principled and reasoned stand against arbitrary incarceration.
I will agree though that under the law as it stands, Wilson could have been sentenced to preventive detention last time he was before a Judge. The fact is he wasnt. I am glad this government – and in particular this minister – is grasping a difficult nettle that has been in the too hard basket for far too long.
So why have a judicial branch of government at all? Why do we force the government to follow a judicial process if ultimately we will tolerate them ignoring that process and doing whatever they want in any case?
Vote:April 12th, 2012 at 1:55 pm
I don’t think its that hard. We set penalties for crimes, and you should do that time (we can argue about lengths of time).
After that you’re free, but Society (thru it’s agencies, like Police, Health, Welfare etc) have the right to monitor you, as a potential risk, and subject you to ongoing parole style checks (you attracted this by committing a crime. You’re now “damaged goods”). This might involve interviews, to ascertain attitudes about others/society/sex/law & order/right & wrong etc. (like Manson goes thru).
If you’re an All Black you have regular fitness checkups, right? and this determines your right to play.
Concerns and violations at checkup can be cause for the State to take new action. Certainly if offenders on release violate rules (like not going near a school) then BAM, back into protective custody with rehabilatative programs to address attitudinal grooves causing the behaviour.
We just have to be more diligent and regular about offenders on (conditional) release.
Vote:April 12th, 2012 at 1:58 pm
“Analysis of statistical and expert assessment of future risk indicates that it is wrong more than half the time. Flipping a coin and saying “heads – this person will re-offend, let’s deny them parole” or “tails – this person won’t reoffend, let’s release them” would be more likely to be accurate.”
Graeme, are you basing that view on parole assessments in general for all crimes or on parole assessments for recidivists paedophiles?
Vote:April 12th, 2012 at 2:04 pm
“Yeah his and that of the World Health Organization, American Medical Association, American Psychiatric Association, the American Psychological Association, the American Counseling Association, the National Association of Social Workers, the American Academy of Pediatrics, the UK’s Royal College of Psychiatrists, the Australian Psychological Society etc. ”
Weihana, so you are trying to argue that there has never been a case of a homosexual changing his sexual preference and deciding to get married and have children and not reverting to a homosexual lifestyle?
Vote:April 12th, 2012 at 2:08 pm
In the instance of a recidivist sexual offender, that offenders psychiatric profile should be fully examined to determine whether that offenders proclivities are a mental illness, which if that is established, then referring that offender to an appropriate institution for treatment and detention is an option.
Gump(237)11.46 said:
“The Mental Health (Compulsory Assessment and Treatment) Act 1992 allows the mentally ill to be detained for treatment under a compulsory treatment orders.
If we accept that sexual aggression/compulsion is the manifestation of mental illness or severe pathology, can we not detain these people under the Mental Health Act?”
It is my view that peadophilia is a mental illness and that offenders should be treated accordingly, and because these offenders do present a threat to the community, their incarceration in an appropriate facility indefinitely is the only practicable solution.
Vote:April 12th, 2012 at 2:11 pm
fishboy: Another brave anonymous dickhead. Know anything about the subject? No? thought not.
Geddis: Fair point about parliamentary sovereignty, especially when – God help us – we eventually get a Green-Labour-Mana- NZ First – God knows what else government!
And just to make my position clear: No, there could clearly be laws which in a free democratic society ought properly to be struck down. When I was at law school (and no, I have not kept up with Joseph’s writings since on parliamentary sovereignty) the texbook example was “what if parliament passed a law allowing torture?” In my view however – I would genuinely be interested in yours – a law allowing the continued detention of Stuart Murray Wilson, Lloyd McIntosh and ten or a dozen others like them is a country mile from that situation. Although I hasten to add I have not seen even a draft of what is proposed.
And as an aside, this whole “the courts can and will strike down objectionable laws” is often an overegged pudding. I recall for example when we were fighting to get 3S passed, the breathless and juvenile media claimed loudly that Finlayson’s report said 3S WOULD breach the Bill of Rights. Quite apart from the fact that the report said no such thing, a careful reading of the (mostly Canadian) authorities cited in the report made it clear that parliament would have to go a great deal further than what is proposed here to interest the courts in striking legislation down. If Ms Collins was proposing a law that – for example – allowed Wilson to be shot if a panel of assessors thought it more likey than not that he would reoffend if released, then the Court might get interested. As you know better than me, based on Canadian authority, which seems to be relied upon heavily, parliament would have to just about be that “draconian” (favourite Labour Party word) to get the Courts interested in intefering.
Please do tell us if you disagree.
Vote:April 12th, 2012 at 2:16 pm
It was either sex offenders generally, or specifically sex offenders against children. I don’t recall which.
But it wasn’t parole assessments, it was the psychological risk assessment of the type presented to parole boards.
Vote:April 12th, 2012 at 2:18 pm
Chuck Bird,
I would say two things:
1. Getting married, having children and not reverting to a homosexual lifestyle does not demonstrate heterosexuality.
2. There is a lack of scientific evidence to demonstrate the efficacy of sexual orientation change efforts.
Vote:April 12th, 2012 at 2:20 pm
Weihana: “Works well for China.”
It does. Well spotted.
But don’t forget that, in the case of China, the Court determines the sentence. And the Army dispatches the offender.
Vote:April 12th, 2012 at 2:24 pm
And the crisis is an 83 year old baby rapist in Paremoremo presumably a physical invalid with perhaps dementia problems by now, Wilson, who from what I read is bewildered to the point that he thinks he’s innocent and therefore victimised by the State, the apparently long dead Stan Reid whose past life is recalled as a necessary ingredient for the cauldron in the absence of the necessary quantity of severed bat wings. I’m sure we need to spend tens of millions on this, change laws, turn it into an election issue – so I’d recommend the very best of health care for both Wilson and McIntosh we don’t want to be having such a major crisis, the prospect of baby rape and what ever it is that is Wilson’s main deviancy entails to be reduced by, if not one of the men dying, but in fact both of them. What good would a crisis be without the two imprisoned men and their little willy problems. And lest we forget a little over a hundred years ago – the Russians were coming, true.
Vote:April 12th, 2012 at 2:34 pm
Nostalgia: Acting as agent for Mr Ellipsis today are we? The first truly inane (on topic) comment of the day…not bad, we have now got almost 80 comments; I guess yours or one like it was inevitable ..eventually.
Chuck: I like to think we are friends or at least allies…but homosexuality connects to this thread how exactly??
Vote:April 12th, 2012 at 2:36 pm
What we should bear inmind is that the worst offenders in our system are sick, and are addicted to their behavior as much as an alcoholic or a gambler.
Now none of us would expect an alcoholic to recuperate in a bar or a gambler to recover at Sky City. In the same way, the worst sexual offenders could not be expected to live in society where they would expect to be confronted by their issues on a daily basis. If the state has identified that a person has a high risk of re-offending, and does nothing, then to whom does the burden of guilt fall should that re-offending take place?
I would hate to be the one saying “I told you so”, but I would also hate to be the parent of a victim of a foreseeable, and therefore preventable, act.
Vote:April 12th, 2012 at 2:48 pm
Slightly: Well said. And that’s the nub of it really, and the question Mr Geddis has studiously avoided all morning. Who would want to be the one who tells the parents of McIntosh’s next victim “I’m sorry but becuase of the importance of every facet of the rule of law we just had to let this guy out even though the best wisdom was that what has happened to your daughter was almost certainly going to happen to someones child.”
And I can almost hear your derisive guffawing from here Mr Geddis; but that fundamentally is the difference between academics and the rest of us. You deal in arcane points of law and theory- some of the rest of us have to deal with the victims of those theories. You should meet some of them some time. Come to the next SST victims conference with me. I will make sure you are safe.
Vote:April 12th, 2012 at 2:50 pm
David, I did not introduce homosexuality in this thread. Some people think if they can repeat an opinion as fact often enough it becomes a fact.
“wreck1080 (2,137) Says:
April 12th, 2012 at 10:03 am
Trying to ‘rehabilitate’ a pedophile would be like trying to convert a heterosexual into a homosexual. Maybe you can try and train pedophiles to curb their impulses, but that would be like training a heterosexual to curb their impulses “
Vote:April 12th, 2012 at 2:55 pm
David: “In my view however – I would genuinely be interested in yours – a law allowing the continued detention of Stuart Murray Wilson, Lloyd McIntosh and ten or a dozen others like them is a country mile from that situation. Although I hasten to add I have not seen even a draft of what is proposed.”
I’m a parliamentary sovereignty man, so provided such a law was enacted in a “proper” manner (by which I mean given full time for a debate that actually engaged with the issues involved), I’d grit my teeth and say “OK … the people’s representatives have spoken”. Doesn’t mean I’d like it, though – you can say “Parliament gets to make the law” while also saying “that was a bad law to make (but I recognise that reasonable minds can differ here)”.
Actually, you may be interested in an earlier post I did when the issue was first raised by National – as you’ll see, I’m not actually as die-in-a-ditch opposed to the general idea of civil detention as perhaps our respective comments have suggested: http://www.pundit.co.nz/content/no-doubt-the-precogs-have-already-seen-this.
Vote:April 12th, 2012 at 3:03 pm
David Garrett
2.34
Inane maybe, but a crisis really? What is the health situation of the 85 year old.? He appears to be being effectively dealt with. As for Wilson, what reason do you provide that shows the authorities can’t deal with him. Other commentators have suggested the MHA could apply and others have said no that act can’t apply – however he did come across as someone in need of treatment or some sort of help. I recall the rapist in the last year or 2 that went and lived near their victim, from memory he was effectively moved along into silence.
I see above I’ve confused the 85 year old in Paremoremo with McIntosh who is under some order that you are also anxious about despite it apparently working. Your presumption that he has offended but hasn’t been caught goes to the heart of the argument against retrospective legislation that entails a ‘privileged’ guess of what a person might do in the future, so apparently you felt that reporting that he hadn’t offended needed to qualified about what in fact he ‘might’ have done and got away with.
If that is all about correct, the crisis is in fact Wilson, who from some reports, would be released before any forensic laws could be passed anyway. Wouldn’t it be better to presume that the relevant authorities are informed and actively engaged in ensuring the good conduct of Wilson?
Vote:April 12th, 2012 at 3:06 pm
David,
You’re going to have to choose who you want to be. Either you can be a self-declared red-neck man of the people who only deals with common sense and despise anyone who puts on airs and graces, or you can engage with the bigger arguments about constitutional principle and wider systems consequences of what in themselves may be good actions. Because your constant flipping from one persona to another is getting really boring … I mean, just look at your comments for a moment (“I studied under Philip Joseph!”; “I hate academics!”; “I believe in Parliamentary Sovereignty, while recognising room for Lord Cooke’s inherent rights!”; I only recognise personal experience of victims and spit on those who deal in arcane points of law and theory!”).
So why don’t you take a bit of time out to work out how you actually want to deal with this topic and then come back to it. Because frankly I’m done trying to engage with someone who one minute tries to buddy-up ingratiatingly (“I’d really be interested in your views on …”), and the next just abuses me (“stupid academic! what would he know!”). It does you no credit, and it weakens the arguments you are making.
Vote:April 12th, 2012 at 3:09 pm
I apologise in advance if the point has already been made but I was getting a bit dizzy watching this ball “thock .. thock ..thock” to and fro over the net.
AG rightly abhors changing the rules after the event and I agree with him. It sets an extremely dangerous precedent, or at least would have had we not already started moving down that path. Thin end of the wedge and all that.
On the other hand, as a society we seem to find it acceptable to infringe upon and in fact outright deny individuals’ liberties in certain circumstances; such as when they go bonkers and/or are incapacitated in some fashion. In such cases, the state denies the individuals their freedom on the basis that it is either for the personal well-being of the individual concerned, or in the best interests of the community, or both.
Although I point blank oppose effective retrospective sentencing, I think that society ought to be entitled to keep out of circulation those who represent a permanent threat to it on some other basis.
If society allows appropriately qualified people to lock someone up in the looney bin for the reasons I’ve mentioned, we are implicitly acknowledging the state’s right to intervene. In the context of recidivist sexual offenders, it is no leap in principle at all to do the same.
If a soon to be released and serial kiddie fiddler or sexual offender has a track record sufficient to demonstrate not only an absence of any remorse or even any acknowledgement of wrong-doing in his/her actions, and there is also a reasonable prospect that the person will offend again, then that to me says that the individual concerned has reached a threshhold sufficient to warrant denial of that person’s liberty on the grounds that it is the community’s interests. That isn’t retrospective sentencing. If such a person had not in fact ever been incarcerated, then again, if the threshhold is reached liberty should be denied. The only distinction is that one would expect in the latter case that the absence of a track record of conviction(s) raises doubts as to how any decision to incarcerate might reasonably be arrived at.
I see this as two completely separate issues. One, whether the individual has done the time required by law. Two, whether there is some requirement to lock the individual up for reasons unrelated to the conviction per se. At that point, the only issue is the nature of the facility given that the person has served the time.
The furore around this is interesting. Was there any shouting going on when that elderly couple were split against up their wills; she off to some form of home where he wasn’t able to stay. Must be nice having to visit your wife of 60 odd years in a facility because some pencil head says you can’t take care of her and seeing her incredibly distressed each time you visit.
I say let her go home and lock the arseholes up.
Vote:April 12th, 2012 at 3:12 pm
Andrew Geddis: Good Lord! Must be a full moon or something. I dont disgree with very much of the post your link leads to.
I must say I am puzzled at the sudden urgency of this, since the situation with Wilson has been well known for a long time. I have no inside conduit to the Beehive, but judging by the officials’ subtle and not so subtle obstruction of the the 3S law – to quote Margaret Thatcher it illustrated that “Yes Minister” was a documentary not a comedy – it may be that the officials have been pissing around doing bugger all on the proposal because they don’t like the proposed law, and Ms Collins has finally had to come out publicly and say effectively “this is what we are doing.”
While some “quick fix” solution might be acceptable to keep “the Beast” inside in the mean time, certainly a law like this which will be of general application – albeit to a tiny number of offenders – is something which should be given full and careful consideration.
Vote:April 12th, 2012 at 3:17 pm
AG,
I know nothing about you, but to suggest that people are as one-dimensional as you do in your 3.06pm comment is farcical.
Not that i’m taking Garrett’s side, but none of his comments you quote (or paraphrase?) seem to be inconsistent. There is a difference between having a law degree (“I studied under PJ”), and being an academic (which I assume you are from previous comments by you and others).
Further, it is quite easy to disagree with someone strongly in one area, but then to say that they’d be genuinely interested to hear your views. An example being that Garrett once supported the death penalty, something I would strongly argue with him on, but i’d be interested to hear his views on homosexual law reform (or, indeed, whether he still believes in the death penalty and why/why not).
Lastly, it seems to me that Garrett was referring to himself as a redneck in a self-deprecating way, judging (perhaps accurately) that that is how other people view him. To do so doesn’t mean he can’t engage in an intellectual discussion over justice policy. Or does it say more about your biases?
Vote:April 12th, 2012 at 3:22 pm
Geddis: Well there you go….just when I thought it was safe to go back into the water….I dont think I have used the terms “stupid academic” or “I hate academics” once… either specificially or by inference… academics have their uses, but then so do septic tank cleaners. And I am certainly not interested in “buddying up” to you or anyone like you.
Is it so odd that I can see this issue from both – or in fact many – sides? Isnt academia all about perceiving shades of grey rather than black and white? I thought – clearly I was wrong – that you were genuniely engaging on this in an effort to give rise to more light than heat. If you are “done” engaging, frankly I dont give a damn!
Perhaps your diatribe is down to my inviting you to an SST victims’ conference? Greg King goes every year, and no-one has ever hit him….And he defended the killers of some of those victims’ loved ones.
Vote:April 12th, 2012 at 3:23 pm
@Vinick: Sure – we all contain multitudes. But when David goes from apparently wanting to discuss “academic” matters of law (because he “really is interested” in what I think), to telling another commentator that my views are of no value because I only deal “in arcane points of law and theory”, I begin to question his bona fides.
Put it this way – if in the pub someone chatted to you in an apparently friendly fashion about matters of shared interest, then turned to the person next to you and said “get a load of this guy, what an idiot – he’s no use to anyone”, would you feel like continuing to drink with them?
Vote:April 12th, 2012 at 3:30 pm
David Garrett,
You deal in arcane points of law and theory- some of the rest of us have to deal with the victims of those theories. You should meet some of them some time. Come to the next SST victims conference with me. I will make sure you are safe.
This is the fundamental problem. You abdicate reason and logic in favour of emotion and irrationality. How can we expect victims to be impartial and rational when it comes to matters of criminal justice? Surely their own victimization forms the focus of their concern rather than achieving a balance between safety and restrained government that serves the best interests of society as a whole.
Absolute safety is not possible. There will always be victims of crime. Certainly we should aim to minimize it, but I’m not willing to sacrifice due process on the presumption that it might improve our safety.
The government is every bit as capable of committing evil as anyone else, even more so given the power it wields. Granting them permission to ignore due process entails far greater risk than letting any prisoner out since the government can make a victim of all of us if we let it.
Vote:April 12th, 2012 at 3:40 pm
thedavincimode (2,842) Says:
April 12th, 2012 at 3:09 pm
If a soon to be released and serial kiddie fiddler or sexual offender has a track record sufficient to demonstrate not only an absence of any remorse or even any acknowledgement of wrong-doing in his/her actions, and there is also a reasonable prospect that the person will offend again, then that to me says that the individual concerned has reached a threshhold sufficient to warrant denial of that person’s liberty on the grounds that it is the community’s interests. That isn’t retrospective sentencing.
Of course it is. The man has already been sentenced for his offending. The absence of remorse, an absence of any admission of guilt, the possibility of future offending… none of these things are crimes nor do they provide lawful justification to keep the man imprisoned beyond his original sentence.
There is what YOU think is right and then there is what the law said at the time of sentencing. A process was followed and this man was sentenced. Now the terms of that sentence are not acceptable to you and you want to revisit the issue and impose a new sentence. Yet you try to claim it’s not retrospective sentencing.
You can’t have your cake and eat it too.
Vote:April 12th, 2012 at 3:43 pm
Can someone answer a point that was raised earlier, I think? Does Wilson not qualify to be placed under an extended supervision order? If not, would a supervision regime be a little less objectionable than indefinite imprisonment imposed retrospectively?
Vote:April 12th, 2012 at 3:45 pm
Jolly good Weihana.
Then we should open the doors to the looney bin.
Trust that you will enjoy life on the outside. When you get out, why not take a course in remedial comprehension?
Vote:April 12th, 2012 at 3:48 pm
Weihana: Not so on either count. I make no apology for being passionate about victims and their rights, and for reserving my compassion for them and not for violent criminals. But I do not believe that that concern and empathy make me irrational and/or incapable of engaging in discussions involving complex constitutional questions and legal theory.
And you might be surprised how open and willing to engage victims of serious crime are. Although Chester “all they need is love” Borrows went a bit too far at the last conference when he pointed to a board comprising photos of murder victims, and told their loved ones “you need to understand the killers of your loved ones are victims too.” I don’t have much time for that bullshit.
Mikey: I dont know the answer. Graeme E or FES probably does. I am assuming that the sudden urgency regarding his case is because it is not available? I dont know
Vote:April 12th, 2012 at 3:49 pm
AG.
You quoted from the Attorney General in your post. I’ll repeat it here.
“There is a difference between ordering detention as a response to previous criminal offending and ordering detention solely as a precaution against possible future offending. I think that detention which is imposed solely on the basis of possible future offending, rather than proved past offending, is inherently problematic.
That this Bill’s goals could be achieved without contravening the right against arbitrary detention or double jeopardy does not provide justification for these inconsistencies. The state should not detain citizens solely on the basis of preventing future offending, nor should it punish offenders twice for the same offence”
I would agree on these 2 points of law. Offenders should not be punished twice for a single offence. We should not, for example, keep a drug dealer or armed robber in prison for longer than an allowed sentence just because of the possibility of recidivism.
However, the nature of certain crimes, particularly serial sexual offending does require us to consider not only the criminal nature of the offence, but the psychological nature of the offending, and in particular the offender. We can point to a crime, and in a legal way, apply a level of incarceration appropriate to an offence, but there are certain people who present a risk who have to be managed in a better way than just locking them up for a period of time and hoping they won’t do it again.
The rule of law is very black and white in this area, and it has to be dispassionate in order to function, but there needs to be some sort of legal framework that will allow a more pragmatic approach. We should not lock people up for the potential crimes, but keeping some people in a secure facility because of their psychological nature, and associated inherent danger should not be off the table because the Law is interpreted by some in a way that suggests all people should be given the benefit of the doubt. I doubt the drafters of the law would not have intended it to usurp common sense, nor absolve society of the obligation to help those who do not believe they need it, even against their will.
If a man threatens his spouse with unspecified violence, and the spouse makes a complaint, the law intervenes. The threat is the crime. If society determines that a sexual offender threatens to re-offend, why can the law not intervene with that threat?
Vote:April 12th, 2012 at 3:54 pm
thedavincimode (2,842) Says:
April 12th, 2012 at 3:09 pm
…If society allows appropriately qualified people to lock someone up in the looney bin for the reasons I’ve mentioned, we are implicitly acknowledging the state’s right to intervene. In the context of recidivist sexual offenders, it is no leap in principle at all to do the same.
Actually I’m not sure my above post really addressed the distinction you are making.
I agree that the government should be able to put mentally unfit people into a facility for their own good and the good of the public. But putting people into a facility for mental health issues is not an excuse to arbitrarily detain people when the government is unsatisfied that the judiciary imposed an adequate sentence.
Vote:April 12th, 2012 at 3:56 pm
I think part of the problem goes back to archaic attitudes that prison is primarily a matter of punishment, and that a criminal should be released once they have suffered some degree of punishment commensurate with their crime (the degree always a matter of debate, but the underlying logic usually going unquestioned).
Someone who cannot help but perpetrate these horrendous crimes is sick. It is not a question of what they deserve, but rather how best to approach the sickness. Proponents of putting them down (state-sanctioned homicide) are usually operating from the old punishment perspective, rather than dealing with the offenders as being sick.
When someone is sick in a way that will inevitably harm those around them, the sensible thing to do is to quarantine them and treat them. If the illness is currently untreatable (and as David Garrett points out, we haven’t had much luck so far), then they must stay quarantined indefinitely and made as comfortable as any patient in the meantime (as the institution David mentions attempts). And their sickness should be studied to increase the chances of discovering effective treatment in the future.
Note that considering someone as sick in the head is very different from condoning the violent and harmful actions that are caused by that sickness.
Vote:April 12th, 2012 at 3:58 pm
Also, detaining someone for mental health issues is essentially no different to detaining someone for criminal behaviour – it is a response to things the person has done.
Vote:April 12th, 2012 at 4:00 pm
thedavincimode (2,844) Says:
April 12th, 2012 at 3:45 pm
Jolly good Weihana.
Then we should open the doors to the looney bin.
Trust that you will enjoy life on the outside. When you get out, why not take a course in remedial comprehension?
I agree I really didn’t address the substance of your argument, but what you propose is still retrospective sentencing… in drag.
Vote:April 12th, 2012 at 4:04 pm
“If a man threatens his spouse with unspecified violence, and the spouse makes a complaint”
From my understanding of the law a man does not have to threatens his spouse to be kicked out of his own home. His spouse just had to be fearful of him and her fear does not have to be rational.
I also know well of a case where a father was denied contact with his daughter and illogical and and unsubstantiated accusation of sexual abuse. I read the transcripts.
In sexual abuse allegations judges to the safe option even if the accused has not record and the evidence is very weak on the small chance they get it wrong. If would be nice if fathers had as many public spirited lawyers like AG to care about their rights as lawyers and legal academics care about the right of kiddy fiddlers.
Vote:April 12th, 2012 at 4:07 pm
The effective difference at the moment is that our society takes pity on one and takes vengeance on the other.
Vote:April 12th, 2012 at 4:07 pm
Weihana:
“I didn’t address the argument because I’ve already made my mind up.
Quite understandable old thing.
Vote:April 12th, 2012 at 4:09 pm
thedavincimode (2,845) Says:
April 12th, 2012 at 4:07 pm
I admitted fault. You want to cry about it all day? Move on.
Vote:April 12th, 2012 at 4:11 pm
Good point Chuck.
Vote:April 12th, 2012 at 4:14 pm
Chuck: You actually make a very good point which hadnt occurred to me. As the law currently stands – or rather the police’s interpretation of it – the response to ANY complaint of assault by a woman against a man is “arrest the man”, regardless of the lack of any evidence. The rationale is clearly “The accusation might be right, and because men are almost always bigger and stronger than women, lets be cautious and lock him up.”
Surely what is being proposed here is simply exactly the same logic? With the huge difference that there is already evidence that Wilson and McIntosh and their ilk are well capable of offending in the way feared.
Perhaps if Geddis has recovered from his attack of the vapours he might like to comment on this point.
Vote:April 12th, 2012 at 4:17 pm
Spoull
Wrong. The ultimate imperative for the detention is the same in both cases unless the mental health detention is for reasons of self harm or inability to care for oneself.
You are simply choosing a different side of the populist coin to those in the throw the key away glee club.
Vote:April 12th, 2012 at 4:17 pm
Ryan Sproull (4,762) Says:
April 12th, 2012 at 3:56 pm
I think part of the problem goes back to archaic attitudes that prison is primarily a matter of punishment, and that a criminal should be released once they have suffered some degree of punishment commensurate with their crime (the degree always a matter of debate, but the underlying logic usually going unquestioned).
Someone who cannot help but perpetrate these horrendous crimes is sick.
It’s one thing to be sick and have a propensity to commit a certain type of crime, but to have no regard for the impact it has on victims is something else. I think there are offenders who know what they did was wrong but have trouble controlling their behaviour and then there are those that just don’t care about victims. Punishment may be a more useful disincentive to people who care much more about themselves than anyone else.
Vote:April 12th, 2012 at 4:20 pm
There is a difference between removing a man from the family environment after allegations of violence or abuse and indefinite detention of an offender who has already served a sentence.
Vote:April 12th, 2012 at 4:21 pm
You may be right, but given I think that approach in domestic violence cases is wrong (the police even frequently arrest the male after he’s called up to complain about being assaulted), what conclusion should follow?
Vote:April 12th, 2012 at 4:22 pm
Indeed mm, in that the man has already been punished before his trial, let alone his conviction.
Vote:April 12th, 2012 at 4:23 pm
FFS Weihana don’t be a prat.
That is in effect precisely what you said. Don’t worry though, I’ll try and get over it somehow.
Vote:April 12th, 2012 at 4:25 pm
Graeme: Before we all get derailed…do you know if Wilson is eligible for the same kind of extended supervision order McIntosh is currently subject to?
Vote:April 12th, 2012 at 4:25 pm
Weihana is right in what he says at 3.40 about the number of bites at the cherry retrospective legislation invites. Though taking into account that AG has probably identified the area of concern – those that could have been sentenced to pd had it been available when they were sentenced milkenmild makes a good point at 3.43 that a ‘supervision regime’ (with appropriate test and appeal procedures) for those that number among the maybe 6 to 8. However, it remains objectionable overall and laws ‘looking back’ are a dim prospect.
Vote:April 12th, 2012 at 4:26 pm
“There is a difference between removing a man from the family environment after allegations of violence or abuse and indefinite detention of an offender who has already served a sentence.”
I agree. The former is far worst. I do not case about the rights of kiddy fiddlers. Do you?
Vote:April 12th, 2012 at 4:34 pm
ESOs are for people convicted of sexual offences against children.
Are any of the charges for which Wilson is currently serving time for sexual offences involving children under 16?
If so – yes. If not – no.
Vote:April 12th, 2012 at 4:38 pm
thedavincimode,
Ok, so anyway…
The Mental Health Act defines a mental disorder as
“… an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it—
(a) poses a serious danger to the health or safety of that person or of others; or
(b) seriously diminishes the capacity of that person to take care of himself or herself;—”
It also stipulates that treatment shall:
“…not be invoked in respect of any person by reason only of—
(a) that person’s political, religious, or cultural beliefs; or
(b) that person’s sexual preferences; or
(c) that person’s criminal or delinquent behaviour; or
(d) substance abuse; or
(e) intellectual disability.”
These provisions, I think, exist for good reason. It is a dangerous area when we give the government the power to lock people up, not for a crime they have committed, but because they have a mental disorder. The government is properly restrained in how they can lock people up in such cases and simply having a mental disorder or a criminal history is no justification, in and of itself, for compulsory treatment.
Moreover, it is perfectly clear that the true motive in this case is to use compulsory treatment because the government is unhappy with the fact that a convict has served his sentence and is entitled to return to the community.
Vote:April 12th, 2012 at 4:47 pm
Punishment as disincentive, yeah. In retrospect I didn’t include this in my list of rational uses of the criminal justice system.
Would it be such a stretch to consider not caring about victims to be itself a symptom of mental illness? It doesn’t scream mental health.
(Sidenote: Don’t scream, “Mental health!” In my experience, doing that doesn’t scream mental health.)
Vote:April 12th, 2012 at 4:51 pm
“Would it be such a stretch to consider not caring about victims to be itself a symptom of mental illness? It doesn’t scream mental health.”
Ryan. do you mean some of the bloggers on this thread should committed?
Vote:April 12th, 2012 at 4:54 pm
Funny how I immediately thought of Trevor Mallard in reading that, but putting that aside:
Weihana, the critical word in the qualification is “only”. Treatment shall not be invoked “by reason only of … criminal behaviour”.
Without having the benefit of the Mental Health Act at my fingertips (I can never find it when I need it) that qualification doesn’t appear to exclude the types of circumstances I’m talking about and that are the subject of this thread.
I don’t expect that the qualification ought to be read so as to read down the substantive provision, being the definition of being nuts which is presumably the basis for being locked up.
It is simply saying that you can’t lock someone up just because they have been convicted of kiddy fiddling; there must be some other reason. And rightly so and as you say, for good reason.
But that is not what we are talking about here in the extreme cases cited by DG in the post.
Legal beagles to the fore please.
Nookin, are you lurking about? FES?
Vote:April 12th, 2012 at 4:59 pm
Weihana: I am wondering if YOU suffer from some disorder….you post some quite sensible stuff, and then that shite…
The “true motive in this case” is to prevent Wilson and his ilk creating more bloody victims FFS….And as is quite clear from the extract you publish, Compulsory Treatment Orders cannot be used on someone because of their sexual preference…Lloyd McIntosh’s sexual preference is little babies….dont you get that??
Graeme: As far as I know, Wilson’s offences are against adult women, albeit particularly vulnerable ones, such as the subnormal or near subnormal…so my suspicion was right; the urgency “around” this is that nothing else is available…
Vote:April 12th, 2012 at 5:07 pm
Weihana.
At what point does a sexual preference cross into a sexual disorder. At what point does a disorder become a danger?
Vote:April 12th, 2012 at 5:13 pm
http://www.paroleboard.govt.nz/decisions-statistics-and-publications/decisions-of-public-interest/wilson_-_stewart_murray_-_29042011.html
The law requires that this man be released. What would common sense require?
Vote:April 12th, 2012 at 5:17 pm
David Garrett,
The “true motive in this case” is to prevent Wilson and his ilk creating more bloody victims FFS…
Calm down, I agree. I’m not saying your concern isn’t genuine, but I don’t think the mental health act is suited to fix this problem and indeed I don’t think the problem can be addressed without retrospective sentencing. Surely a judge would be very skeptical of an application under the mental health act in this case.
And as is quite clear from the extract you publish, Compulsory Treatment Orders cannot be used on someone because of their sexual preference…Lloyd McIntosh’s sexual preference is little babies….dont you get that??
Yep, and that in itself doesn’t permit compulsory treatment. Though, he has multiple factors against him obviously. I think the problem would be the definition of mental disorder. His condition does not appear to me to meet that definition.
Perhaps the rules could be changed to cater for these types of individuals but then if an offender doesn’t admit guilt and a problem then my understanding is they get no treatment while inside so all this mental health act stuff becomes irrelevant. Their conditions won’t be diagnosed because they’ll know they can be kept locked up after their sentence under the mental health act.
I still think the issue has to be addressed at the outset with proper sentencing including life imprisonment if necessary.
Vote:April 12th, 2012 at 5:20 pm
slightlyrighty (2,128) Says:
April 12th, 2012 at 5:07 pm
Weihana.
At what point does a sexual preference cross into a sexual disorder. At what point does a disorder become a danger?
I don’t know if I’m qualified to answer that, but my layman’s opinion would be that it is a disorder when it is harmful. But preference and disorder aren’t mutually exclusive. Paedophilia is both a preference and a disorder.
But as far as I know it isn’t a disorder that is necessarily characterized by delusions or disorder of mood, perception, volition or cognition.
Vote:April 12th, 2012 at 5:30 pm
Weihana: I am sorry, I clearly misunderstood. That’s exactly the point: the Mental Health Act cannot be used here,…
Does anyone know if “paedophilia” is recognised as a “mental illness” ?? I suspect not..I know it is not universally accepted as a sexual orientation either, so who knows exactly what the medico-legal position is. Compunding the matter still further is the belief by some in the “therapeutic community” in NZ the paedophiles can be “cured”…apparently here in NZ, uniquely in the western world, we have discovered that paedophiles can be treated successfully….until you look at their data more closely..
Weihana: You have had go at answering the question I see…we need someone medically qualified here…
Vote:April 12th, 2012 at 5:32 pm
Yet the government isn’t talking about extending ESOs, it’s talking about something different entirely.
Vote:April 12th, 2012 at 5:37 pm
Graeme, according to SST he indecently assaulted two children.
http://www.safenz.org.nz/sxdb/wilsonstewart.htm
Vote:April 12th, 2012 at 5:40 pm
I seem to recall a comment that he was acquiited of the charges that could have led to preventive detention or an ESO being imposed.
Vote:April 12th, 2012 at 5:42 pm
The ex post facto principle is an important one. But principles are a generalization from based on specific cases, and the specific cases which gave rise to the ex post facto principle were nothing to do with letting multiple sex offenders out into the community. Such people would have been hanged or castrated in short order at the time the ex post facto principle came into being. And is anyone seriously suggesting that Wilson or McIntosh acted in reliance on the fact that their crimes carried a 20 year maximum sentence rather than life? This is an obvious exception to ex post facto and a reasonable and practical person ought to be able to see that.
However, I don’t really buy into this ‘civil detention’ business. It seems like a transparent and unconvincing way to violate the ex post facto principle without actually admitting this is being done. A more honest approach would be to resentence them to life in prison, if necessary changing the law first in order to make that possible. This would be no more retrospective in practice than civil detention, and would reflect the simple correction of an error in law or sentencing that occurred in the past.
Vote:April 12th, 2012 at 5:49 pm
@weihana @ about 1:27 PM
you take my points and then attempt an absurdio ad reductio type argument by applying them to drink driving and similar extensions when I made it clear that it was a value judgement and for terrible crimes and more importantly related to the risk of reoffending. Some mystical event that based on this that the government can thus do anything it likes is just absurd. If I take that to its ultimate fallacious logical conclusion parole would be compulsory for instance.
It’s not about setting a sentence and then changing the sentence – it’s about risk of a terrible offence in the future. This does not relate to the original offence or offences except in that they are part of indicators to the probability of re-offence.
There’s a huge amount of argument in favour of criminal rights I don’t see the rights of the victims or general populace being stood up for here with basic principles such as the right to live in a safe environment.
Vote:April 12th, 2012 at 6:24 pm
This is a hard case that tests the balance between protecting the community (and possible future victims) and recognising the rights of the offender. Simply retrospectively sentencing people for crimes that they might commit (slijmbal calling it for what it is) seems to me to go a bit too far. Could we not look at the rules for extended supervision orders to see whyether they might be changed to apply to these cases?
Vote:April 12th, 2012 at 6:48 pm
Nigel Kearney
5.42
I’m not sure what error in law or sentencing you are talking about. He was sentenced under the law that prevailed at the time, the consternation is about his status as a possible re-offender upon release so the object is to re-sentence him under a new law, drafted with him and a few others in mind.
slijmbal
5.49
Wilson is not being afforded any rights other than to be considered for parole and assistance to lower his risk category, he will have served his full sentence having had parole considered and denied. Surprisingly, it’s been his decision to refuse specific treatment and counselling which puts him in an odd category as someone who has rejected opportunity to perhaps reduce the amount of time he has served. In that respect you could say he’s inadvertently done the public a favour by reducing to zero his chance for parole. I suspect that same attitude, referred to by the psychologist in his board report, will mean he would quickly come to police attention upon release before any new law is drafted or enacted. That attention could provide greater control of him if he remains in the community and the alternative is that he will return from whence he comes.
Vote:April 12th, 2012 at 8:01 pm
@milken
by definition it is not a reprospective sentence – it is about something that is abhorrent to most of us – restricting someones rights based on what they might do,
However, perhaps that is the pragmatic and not principled approach here
@Nostalgia – it’s not about Wilson’s approach to parole – it’s about the fact that we let known likely predators (and I use this emotionally laden term deliberately) out in to the community
Vote:April 12th, 2012 at 8:41 pm
And to those who use the argument that this type of action leads to dictatorships as it implies the judiciary are not given full indedepence – utter bollocks.
Yet to see a judiciary stop a real dictatorship as typically there are judges willing to tow the line. Democracy, the otherwise useless media and educated influencial middle classes stop dictatorships. One cannot truly believe that reducing highly risky people’s rights will lead to Nazis in the bed (yes hyperbole). We err to the side of individual rights as we should.
For those in the judiciary I have some sad news – you are not that important. I would like to remind you that the IRD and Customs have enormous powers that make the police look like wimps. How about limiting them?
Vote:April 12th, 2012 at 8:44 pm
slijmbal
8.01
There’s no argument that he’s a convicted predator and remains assessed as a continued high-risk predator. But he will have served his sentence. He’s in his mid to late sixties, unemployable, with what appears as a self-defeating attitude of entitlement and denial. His chances to re-offend seem limited because of the attention upon him, several agencies will be involved with this man. The question is whether or not this situation requires new law which is retrospective, or some calmness that the authorities have things in place in respect of Wilson, who by any description is gravely bewildered, physically and mentally frail and more than likely unwilling to be leaving prison anyway.
Vote:April 12th, 2012 at 9:08 pm
“who by any description is gravely bewildered, physically and mentally frail”
Strange then how your description and assessment of his risk is completely contradicted by the forensic psychologist who last saw him, journalists, correctional officers and the parole board.
Vote:April 12th, 2012 at 9:33 pm
Nostalgia: What utter bullshit….was it you who made the snide post early on today about the “long dead Stan Reid” ?? Do you think there just might be a good reason the oldest inmate in NZ is an 85 year old paedophile? You think the authorities just might have learned a thing or two since they released “poor old Stan” who attempted rape six weeks later at 83? Ya think?
What’s that old saw about the blind and the man who will not see? Age does NOT necessarily weary these individuals…
Vote:April 12th, 2012 at 10:36 pm
Dexter
9.08
I read what the psychologist presented to the Parole Board as reported above. If you think that bewildered and mentally frail is not presented by the psychologists assessment you might explain why.
David Garrett
9.33
Would you prefer ‘the recently dead Stan Reid?’ As for the 85 year old I asked about his health and physical capacity, but you have chosen not to answer.
Vote:April 13th, 2012 at 8:56 am
The children’s protection is what must come first.
I support the death sentence for provable murder without a doubt.
With pedophiles it is difficult initially, so that is a conundrum of sorts.
Vote:April 13th, 2012 at 9:10 am
We have ordinary men told by Air NZ that they cannot sit beside an unaccompanied minor on the basis of an irrational risk to the child. This an Airline where the State in the major shareholder. I have have more concern for the human rights of a total innocent man than the rights of some sub human recidivist kiddy fiddler. Let him die in jail.
Vote:April 13th, 2012 at 9:57 am
Damn I Godwin’d the thread – apologies to all
Vote:April 13th, 2012 at 12:13 pm
Michael Mckee,
I support the death sentence for provable murder without a doubt.
There is no such thing as “without a doubt”. You can have DNA evidence, video of the crime, a signed statement admitting guilt. Even then that does not prove something beyond all doubt.
For any proven “fact” any number of fanciful theories can be imagined to explain away the evidence upon which that “fact” is concluded. Indeed this is bread and butter for conspiracy theorists.
Such fanciful theories may not be reasonable, but they are still possible and thus still cast doubt. That is why the standard is “beyond all reasonable doubt” because it is impossible to prove facts to a higher standard.
With few exceptions, there is no such thing as absolute knowledge about reality. Our knowledge is always conditional upon what we know and what we don’t know always has the potential to undermine our view of reality. This is why science is never “settled”.
We can never eliminate the possibility that innocent people will be found guilty of a crime and so the barbarity of execution is never justified under any circumstances lest we all become murderers.
But I would go further than that. I would say that even if a person is, in actuality, guilty they still should not be executed. Execution serves no legitimate purpose other than to satisfy a primitive blood lust and a need for vengeance. It does not bring back the deceased and it does not make society safer. While it is understandable why victims desire vengeance, I do not think we should appease such irrationality nor should we allow our government to kill its citizens.
Killing is wrong and the government should lead by example.
Vote:April 13th, 2012 at 12:30 pm
slijmbal (475) Says:
April 12th, 2012 at 8:41 pm
And to those who use the argument that this type of action leads to dictatorships as it implies the judiciary are not given full indedepence – utter bollocks.
Yet to see a judiciary stop a real dictatorship as typically there are judges willing to tow the line. Democracy, the otherwise useless media and educated influencial middle classes stop dictatorships. One cannot truly believe that reducing highly risky people’s rights will lead to Nazis in the bed (yes hyperbole). We err to the side of individual rights as we should.
It’s worth noting that the Nazi party was democratically elected so it is quite evident that dictatorships can evolve out of democratic foundations.
You are right it is the media and the middle classes which stops dictatorships. No one is expecting that the judiciary will ignore the supremacy of Parliament. Rather it is customary that Parliament respects the judiciary and due process.
I expect the average middle class person to draw a line in the sand and expect that Parliament respects this custom and does not ignore due process. Once we abandon the principle that people are entitled to due process then we, the middle class, has given in and opened the door for dictators to further erode safeguards against totalitarianism.
As some have already suggested, just wait until the Greens are in power and remember the precedent that you have set.
Vote:April 13th, 2012 at 12:40 pm
Weihana said…
Killing is wrong and the government should lead by example.
I’ll throw back your favorite line. Says who?
Weihana said…
Such fanciful theories may not be reasonable, but they are still possible and thus still cast doubt
Reasonable, Possible, Doubt are all fuzzy terms? At what level of fuzziness that you may be willing to define something as being reasonable?
The way the law is written is mostly fuzzy and not bivalent (true/false).
Vote:April 13th, 2012 at 12:50 pm
slijmbal (475) Says:
April 12th, 2012 at 5:49 pm
@weihana @ about 1:27 PM
you take my points and then attempt an absurdio ad reductio type argument by applying them to drink driving and similar extensions when I made it clear that it was a value judgement and for terrible crimes and more importantly related to the risk of reoffending.
But that’s the problem, the law isn’t about arbitrary “value judgements”. It’s about principle and having standards that can be relied upon. If the government can just make it up as it goes along then we no longer have the rule of law, we have arbitrary rule which leads to totalitarianism.
You may trust our current leaders, I don’t trust any of our leaders and never would.
There’s a huge amount of argument in favour of criminal rights I don’t see the rights of the victims or general populace being stood up for here with basic principles such as the right to live in a safe environment.
Nonsense. Due process is the principle upon which all other legal rights depend. I too want to live in a safe environment and that includes an environment safe from oppressive totalitarian government.
Criminals should have their freedom diminished if not removed entirely and indefinitely. But there is the correct way of doing this and then there is the incorrect way of doing this. What some propose is the incorrect way (i.e. suspending civil liberties). This is exactly what Hitler did (you brought him up lol).
Hitler used the Reichstag fire as grounds for suspending civil liberties. The Reichstag fire was supposedly intended to foment civil war “against the lives and safety of the peaceful population” so this was justification for suspending civil liberties just as criminals effectively wage a war “against the lives and safety of the peaceful population” and so too you are now looking to justify a suspension of civil liberties.
The German population was divided up into the “good” people and the “bad” people and the bad people used as a justification to take away the civil liberties of all. But of course at the time people only see it as affecting the “bad” people. But if the government can ignore due process in one case then what’s to stop them in any other case?
Vote:April 13th, 2012 at 12:58 pm
Falafulu Fisi,
Taking a break from the birther nonsense eh?
Weihana said…
Killing is wrong and the government should lead by example.
I’ll throw back your favorite line. Says who?
I think the “Weihana said…” is a dead give-away.
Weihana said…
Such fanciful theories may not be reasonable, but they are still possible and thus still cast doubt
Reasonable, Possible, Doubt are all fuzzy terms? At what level of fuzziness that you may be willing to define something as being reasonable?
Whether something has been proven beyond all reasonable doubt depends on the specific circumstances of each case so asking “at what level” is meaningless without context. The phrase “beyond all reasonable doubt” is the standard of proof required. It is fuzzy I agree and necessarily so.
Vote:April 16th, 2012 at 4:32 pm
http://en.wikipedia.org/wiki/David_Garrett_(politician)
Assault conviction
Alleged drunkenness and homophobia
Attitude to human rights
Lewd conduct
Alleged discrimination on the basis of political inion
Alleged threat against another MP
Eugenics
Drunken driving
NZ herald story
TV One’s Eye To Eye with behaviour described as “obnoxious” and “unbelievably unprofessional”.
Sources said Garrett turned up drunk and offended production staff described as “obnoxious” and “unbelievably unprofessional,
He was so extreme, I couldn’t believe it,” said one. “He was in the green room and he was so drunk.
Another said: “He disgraced himself. During the show, Garrett, speaking slowly and occasionally slurring, made rambling comments which were rubbished by the other panellistsisaster”.
Eye To Eye regularly sought out controversial guests and Garrett was invited on as a legal adviser to the Sensible Sentencing Trust. “I did find him to be obnoxious. I told him we would never have him back again.”
Debbra Coddington said she was shocked by Garrett’s attitude: “He was really rude to me. He walked up and said `Deborah Coddington, my brother hates you’.”
—-That is how Garrett started politics, and is how he was washed up in politics.
Vote:Nothing worse than a compulsive liar
April 16th, 2012 at 5:02 pm
David Garrett, the boy who cried wolf
On 29 July 2011 Garrett was arrested by police for allegedly having a blood alcohol level of 132mg alcohol per 100ml of blood, while driving. On 8 November 2011 he plead not guilty to the charge, but changed his plea when the case returned to Court on the 13 February 2012. Garrett was disqualified from driving for six months and fined $550 plus court costs.[24] He said he was deeply ashamed of his actions
—–Why did not Garrett plead guilty in the first place?
Answer, Garrett is used to getting away with breaking the law and is a compulsive liar.
Vote:April 16th, 2012 at 5:16 pm
link explains how David Garrett and Garth Mcvicar gagged a 93 year old and robbed her from her freedom of speech.
Vote: