Christie’s Law

June 12th, 2012 at 12:00 pm by David Farrar

The Herald reported:

Tracey Marceau delivered a tearful plea to Parliament yesterday as she presented a 58,000 signature petition supporting the campaign, in memory of her slain daughter, to strengthen laws.

Christie Marceau, 18, died in her mother’s arms after a violent attack at their North Shore home in November.

Akshay Chand was arrested at the scene and later charged with Christie’s murder. Chand was on bail at the time after being charged in September with kidnapping, assaulting and threatening Christie. 

A campaign website has been set up, asking for 10 changes to bail laws, to help stop any preventable killings – such as Christie’s.

One proposed change is an unfortunate loophole in the 3 strikes laws, that if you commit further violent or sexual offences while on bail for a similar offence – then the further offences do not count as strikes. This provides a perverse incentive to offend more while on bail, as the consequences are reduced.

The reasons it works this way is that you can’t get a second strike, until convicted of a first strike, and offenders need to be aware in advance of the consequences of any further offending. But a simple solution to this is that if someone charged with a “strike” offence is given bail then they are told in court that if convicted they will get a first strike and if they offend similarly while on bail then further convictions will be their second and third strikes. This would remove the perverse incentive that offending on bail has less severe consequences.

The campaign has 10 changes they are seeking to the Bail Act, which I will outline below. The one I mentioned above may be dealt with as a private members bill. I understand Taupo MP Louise Upston is drafting such a bill.

The 10 changes are:

  1. No bail for any person who is charged with a serious violent “three strike” offence, who has previously committed a serious violent “three strike” offence while on bail.
  2. Judges should be required to pay particular regard to submissions made by victims, and any personal threats made against victims in deciding whether bail should be granted.
  3. Fix the loophole that allows persons committing serious violent “ three strike” offences while on bail for other serious violent “ three strike” offences, to avoid the “” sentencing regime.
  4. Removal of the strong presumption in favour of bail for persons under 20 where previously convicted of an offence punishable by imprisonment.
  5. Conduct an annual review into serious breaches of bail & serious crime committed while on bail, and reported to the Minister of Justice and publicly available.
  6. Police should have powers to appeal bail decisions equal to those the defence has.
  7. Implement a “risk assessment tool” to assist Judges to make well-informed bail decisions.
  8. Implement practical methods of increasing judicial accountability for bail decisions, such as internal benchmarking of Judges’ performance and assistance for poorly performing Judges.
  9. Serious breaches of bail to be addressed by a presumption of imprisonment, rather than fines, which are ineffective, inconsistently applied and rarely paid.
  10. Offences committed while on bail should be sentenced cumulatively, rather than concurrently as they generally are at present.

With (1) I think if one has committed a serious violent offence while on bail, you should lose bail eligibility in the future.

(2) is minor, and (3) I discuss above. No (4) is debatable – it would depend on what replaces the strong presumption in favour of bail. Nos 5 to 8 are fairly minor also.

No (9) I support. Breaching bail is not a minor issue, and the best way to deter it is the near certainty of imprisonment for serious breaches.

No 10 is of critical importance. Stephen Franks has blogged on this previously. It all comes back to the fact offenders on bail are incentivised to offend further, for little consequences. If for example you are charged with 25 burglaries and you get bail. Now if you go and do another 20 burglaries while on bail, then the sentence you will get will tend to be almost the same as for the original 25 burglaries.

I do support concurrent sentencing as the norm, but not for offences done on bail. You need to have an incentive to not offend on bail – and the current set-up provides very little incentives – as we tragically have seen.

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52 Responses to “Christie’s Law”

  1. Redbaiter (8,923 comments) says:

    “I do support concurrent sentencing as the norm”

    Why?

    Unfathomable that anyone would support such a farce. Concurrent sentencing completely undermines the deterrent effect of prison sentences and makes a complete joke of the justice system, already a dangerous and unworkable solution to crime thanks to years of interference by fucked in the head liberals.

    Bring back the death penalty. Society needs a benchmark for moral behaviour, and that one does not presently exist is a reason that is at the root of today’s lawless NZ society.

    [DPF: If you have cumulative sentencing for everything, then a burglar will get sent away for longer than a rapist or killer]

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  2. Longknives (4,753 comments) says:

    To me concurrent sentencing is a major part of the problem- Cumulative sentencing would surely be far more of a deterrent for serial offenders i:e If a rapist knows he is going to go to jail for ten years whether he commits one or three rapes what’s he going to do?
    Things might be different if that same guy was staring down thirty years in the clink..

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  3. Colville (2,268 comments) says:

    When I was about 17 I got smashed over by a bloke who was on bail. Cops got him after a while and he got 9 months to be served concurrently. Cops knew it was going to happen and appologied to me in advance for what the soft cock judge would do.

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  4. Mr Nobody NZ (391 comments) says:

    Likewise the entire debate around removal of children from abusive parents could be largely resolved through a 40 year minimum sentence for anybody found guilty of abusing a child.

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  5. AG (1,827 comments) says:

    I’m curious – would these changes actually have done anything about the case being used to push them (Christie Marceau’s murder)? As far as I can see, the only change that may have impacted on the decision to give Akshay Chand bail is (2) … and the only way that change could touch him is if there’s a presumption that ALL persons charged with threatening don’t get given bail (I don’t think that Chand made threats that if released on bail he would hurt Christie, rather he made threats against her that led to his arrest and charges being laid against him for which he was bailed). So is the proposal really that a person who, in the heat of the moment, yells “I’ll fucking kill you!” loses the right to bail?

    (I note that the decision to bail Chand, especially to an address so close to Marceau, clearly was the wrong one … but that’s an easy call to make now with 20/20 hindsight … and also note that Chand has mental health issues that may mean his actions were literally unpredictable no matter what bail rules exist.)

    As for (4), I note that disorderly behaviour is (in theory) punishable by imprisonment. So is the proposal really that an 18 year old charged with burglary loses any presumption in favour of bail if that 18 year old has in the past been convicted of disorderly behaviour? That seems a bit OTT.

    [DPF: I agree the threshold for (4) probably could be higher]

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  6. Put it away (2,878 comments) says:

    Sensible stuff. Why is all of this not law already?

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  7. kowtow (8,487 comments) says:

    Who loosened the bail laws? Those are the soft cock crim huggers who are responsible for this appalling state of affairs.

    Criminals need to fear the consequences of their actions and need to know that if you commit a serious crime the likelyhood is that you will be caught and quickly dealt with.

    Prison does work, you just have to keep the fuckers in there.

    Progressive “liberal” shit destroying our society.

    Human rights,alternative solutions,indigenous oppression,social justice………..all bollocks.

    Bring back the noose.

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  8. RRM (9,924 comments) says:

    I think No.1 would be better if they deleted the second half of it, and just stopped at the comma.

    No bail for any person who is charged with a serious violent “three strike” offence.

    Simple!

    Oh and what redbaiter said about concurrent sentencing. We should come down much harder on people who CHOOSE to throw away their rights to live in our civilised society (by choosing to behave like shit bags.)

    Not a fan of death penalties, but would definitely support a “scrap heap” model for the justice system, where rubbish is thrown into the bin permanently.

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  9. Graeme Edgeler (3,289 comments) says:

    One proposed change is an unfortunate loophole in the 3 strikes laws, that if you commit further violent or sexual offences while on bail for a similar offence – then the further offences do not count as strikes.

    No, they still count as strikes. If they were committed when the person had a previous conviction for a strike offence they will not get parole, and if they have a conviction for one of those (i.e. a second strike conviction), they’ll get the maximum with no parole.

    AG – could the risk assessment tool have shown there was a risk such that bail shouldn’t have been granted? Did the police oppose bail and would they have appealed if their rights of appeal were greater? etc. It’s not necessarily the case that only point 2 would have made a difference.

    [DPF: But if they are yet to have a strike, then a strike offence commited on bail will not result in a 2nd strike , even if they are convicted of a strike offence for the original offence]

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  10. Graeme Edgeler (3,289 comments) says:

    This would remove the perverse incentive that offending on bail has less severe consequences.

    Offending on bail has more severe consequences than offending not on bail.

    [DPF: In theory, but not always in practice. If you do 20 burglaries, do not get bail, get say 2 years jail and then get out and do 20 more burglaries and get another two years jail you get 4 years.

    If however you got bail for the 20 burglaries, and then on bail do 20 more, then you get convicted of 40 burglaries and probably get say 2.5 years]

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  11. RRM (9,924 comments) says:

    But on a slightly more cynical note:

    Christie’s law… Sophie’s law… It’s amazing how many people will turn out and try to change the world in your posthumous honour if you were a pretty, young, white university student who was going places… innit?

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  12. Graeme Edgeler (3,289 comments) says:

    No (4) is debatable – it would depend on what replaces the strong presumption in favour of bail.

    I would assume the ordinary bail rules (such as apply to 21 year olds).

    As for (4), I note that disorderly behaviour is (in theory) punishable by imprisonment. So is the proposal really that an 18 year old charged with burglary loses any presumption in favour of bail if that 18 year old has in the past been convicted of disorderly behaviour? That seems a bit OTT.

    The current presumption is in the following form:

    15 Granting of bail to defendant under 20 years of age

    (1) If a court remands or commits for trial or for sentence a defendant who appears to the court to be of or over the age of 17 years but under the age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit.

    [some exceptions follow]

    I do not believe the suggestion is that any presumption is gone, just that the presumption there currently is would be replaced by the ordinary presumptions in such cases.

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  13. Chuck Bird (4,884 comments) says:

    I think No.1 would be better if they deleted the second half of it, and just stopped at the comma.
    No bail for any person who is charged with a serious violent “three strike” offence.
    Simple!

    So who is going to compensate someone accused of rape by some vindictive woman of sexual abuse by a bitter ex-wife? There are a lot of false claims in the case of both of these crimes.

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  14. AG (1,827 comments) says:

    @Graeme Edgeler: “could the risk assessment tool have shown there was a risk such that bail shouldn’t have been granted? Did the police oppose bail and would they have appealed if their rights of appeal were greater? etc. It’s not necessarily the case that only point 2 would have made a difference.”

    No idea about the “risk assessment tool”, because I don’t know what it involves. And while police did “vigorously” oppose bail in Chand’s case, the murder was committed very shortly after his release … so would a right of appeal have changed anything in this case (i.e. would the crime have been committed before any appeal could be heard)? I’m just not that convinced the example of a “bad bail decision” these changes are being sold on actually would be touched by the changes … indeed, short of saying “no bail for violent offences”, I’m not sure anything could have been done to stop Chand’s crime.

    “I do not believe the suggestion is that any presumption [for bail] is gone, just that the presumption there currently is [for those 20 and under] would be replaced by the ordinary presumptions in such cases.”

    Sure … but ought a prior conviction for disorderly behaviour have this impact?

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  15. AG (1,827 comments) says:

    “I think No.1 would be better if they deleted the second half of it, and just stopped at the comma.
    No bail for any person who is charged with a serious violent “three strike” offence.
    Simple!”

    So George Gwaze should have spent the last 5 years in jail, before being acquitted for the murder of his adopted child?

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  16. RRM (9,924 comments) says:

    AG / Chuck – ok, you’ve convinced me. Would need to be in conjunction with a radical speed-up of the wheels of justice…

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  17. Graeme Edgeler (3,289 comments) says:

    When police appeal bail decisions, the High Court reacts very quickly.

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  18. Graeme Edgeler (3,289 comments) says:

    Sure … but ought a prior conviction for disorderly behaviour have this impact?

    That wasn’t my point, but I’m at a loss to explain why it’s the law now. Why should there be *automatic* bail for a 19 year-old murder accused?

    I’m not saying they shouldn’t get bail, but why must they get bail?

    Rather, my point was that you seemed to be implying that such people would lose the presumption of bail under this change. Which does not appear to be the case.

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  19. David Garrett (7,289 comments) says:

    Concurrent sentencing – at least as it is currently applied in NZ – is nonsense; it literally does, as Longknives says, allow you a free rape or whatever.

    But in the current enviroment, we will be lucky if any of these provisions are passed, let alone consecutive sentencing. Judith Collins is in a minority in the current government..Borrows is a born again “all the crims need is love” Christian…Bill English thinks prison is a “moral failure”..Simon Bridges would be supportive of at least some but probably not all of these changes.

    As for the death penalty, forget it. I wrote a book arguing for its return ten years ago. I now accept that it simply isn’t going to happen, and if it did, we would end up getting what lawyers call “perverse verdicts”, and we would be worse off than now. Murderers would either walk or get manslaughter because people no longer have the fortitude to bring in a guilty verdict knowing death may result.

    Judges are now able to impose LWOP for the worse cases of murder, and that overcomes all the arguments against CP, the most cogent of them of course being the “wrong man” argument.

    I have also come to the view that life in a cage is actually a worse punishment that the seconds of terror a judicial hanging properly carried out took.

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  20. tvb (4,422 comments) says:

    The three strikes legislation is useless. It takes away discretion from judges and the parole board. Offenders do not think about consequences when they offend. They do not think shit I had better be careful I am on my second strike. That comes afterwards at sentencing.

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  21. F E Smith (3,305 comments) says:

    Prof Geddis,

    I presume that the ‘Risk Assessment Tool’ referred to by Graeme is the form that constables can fill out and present to their prosecuting Sergeant, who may then present it to the Court, which gives risk factors as they allegedly apply to the defendant, and tabulates them into a total ‘risk factor’.

    I don’t think that the tool, if I have the right one, is one that should be given any creedence at all. Too much depends upon the estimation of the officer who has generally just arrested the defendant and is no way impartial in the case. I have seen some ridiculous risk assessments completed by officers who wanted to tilt the bail decision in their favour.

    Perhaps if the risk assessment was carried out by a probation officer, I might be more inclined to accept it.

    David G,

    DPF makes a good point above about the problems of concurrent vs cumulative sentencing. I saw the sentencing of one woman for fraud that involved 126 counts. Imagine what her sentence would have been if she had been sentenced cumulatively! I also disagree with you that rapists, for example, get a ‘free rape’. A second charge of rape will always attract a heavier sentence. It just won’t necessarily be a cumulative one.

    I haven’t read your book on the death penalty, but when you wrote it did you come across the statistic that I read recently (can’t remember for the moment where) that, in England over the last 500 years or so, only about 1/3 or so of death sentences were actually carried out. Many were reprieved by the Home Secretary, a right that continued up until its abolition in the UK. There will still a lot of executions because of the range of offences that carried the death penalty. However, if the jury knows that the Justice Minister can reprieve, then perhaps that will get around the perverse verdict issue?

    Hold on, given the attitudes of our most recent Justice Ministers to Peter Ellis et al, perhaps that isn’t such a good thing to point out!

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  22. F E Smith (3,305 comments) says:

    Also,

    Prof Geddis makes a good point re Gwaze. There has to remain flexibility within the bail decision.

    Also, as Graeme has pointed out, point 6 seems irrelevant. The prosecution already equal rights of appeal (see ss 41 and 66 of the Bail Act 2000) and uses them from time to time. And, as Graeme notes, the High Court processes a prosecution bail appeal a great deal more quickly than a defence bail appeal. It is basically impossible to get a same day bail appeal hearing in the High Court if you are a defendant, but if you are the prosecutor then it is indeed possible!

    Point 4 needs to be amended. Drink driving carries a term of imprisonment as a possibility, and it would be wrong to use that as evidence of criminal propensity in, say, a rape allegation. If you made that conviction of a crime punishible by more than 2 years imprisonment was relevant, then I wouldn’t object so much.

    WIth regards point 8, will judges who regularly deny bail to people who are eventually acquitted also be reviewed?

    And point 9 is already in practice. Serious breaches of bail are usually rewarded with a denial of continued bail. That is the immediate consequence. The judge must then apply the legislated penalty for whatever the bail breach was, so to claim that the usual penalty is a fine is just wrong.

    DPF,

    I don’t think the example re point 10 is a good one. It just isn’t true. Admitting to committing 20 burglaries whilst on bail for burglary, especially a large number of burglaries, will pretty much always get you a much tougher sentence. I mean extra years, not months. That isn’t a guarantee, as sentencing must have some discretion, but it is a ‘8 out of 10′ type situation.

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  23. Graeme Edgeler (3,289 comments) says:

    And point 9 is already in practice. Serious breaches of bail are usually rewarded with a denial of continued bail. That is the immediate consequence. The judge must then apply the legislated penalty for whatever the bail breach was, so to claim that the usual penalty is a fine is just wrong.

    Other than the loss of bail, there is no legislated penalty for breach of bail, unless that breach is not turning up to court.

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  24. Graeme Edgeler (3,289 comments) says:

    WIth regards point 8, will judges who regularly deny bail to people who are eventually acquitted also be reviewed?

    To even things out, if someone spends time in prison despite being acquitted (and therefore innocent), the alleged victim (or if they’re dead, a family member) will have to spend the same length of time in prison.

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  25. tvb (4,422 comments) says:

    On bail it is pretty difficult for offenders with a significant history to get bail especially for serious offending. The problem with Christies law is it takes away discretion from the judges and people will be locked up awaiting trial and will spend time in custody even when charges are dismissed. Trust the judges I say.

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  26. F E Smith (3,305 comments) says:

    Other than the loss of bail, there is no legislated penalty for breach of bail, unless that breach is not turning up to court.

    True, but we both know that a breach of conditions reopens the question of bail.  What I should have said was ‘Serious breaches of bail or offending whilst on bail’.  

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  27. Pharmachick (235 comments) says:

    @ Prof Geddis, Graeme Edgeler, FE Smith and David Garret (as well as anyone else that cares to read & comment)

    I have read this thread with great interest, and indeed; my ideas have morphed somewhat along with the cogent arguments presented. This being said, I believe that I might speak for a [few] more than me when I say that
    1) Concurrent vs. Consecutive – your arguments above seem extreme. I believe that what us average “joe bloggs” NZers would like to see is that a home-invasion, rapist, murderer can get concurrent, whilst your average burgler doesn’t get B&E, Theft, Theft of a motor vehicle etc concurrent.

    I’m strongly for consecutive sentences. But, I also believe that for the average citizen, this is a size issue (i.e. awfulness of offending) rather than a numbers issue (i.e. number of burglaries). Naturally; this would take very creative, yet extremely careful, legislation. But with the cleverness we have available in NZ, as well as the societal and [possible] political will … shouldn’t this be a goal?

    cheers

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  28. Chuck Bird (4,884 comments) says:

    “To even things out, if someone spends time in prison despite being acquitted (and therefore innocent), the alleged victim (or if they’re dead, a family member) will have to spend the same length of time in prison.”

    Graeme, I am sure you are joking about the last part but just because someone is acquitted does not mean they are innocent. Even if the police decides not to charge someone does not mean they are innocent.

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  29. Pharmachick (235 comments) says:

    Whoops, sorry everyone:
    “I believe that what us average “joe bloggs” NZers would like to see is that a home-invasion, rapist, murderer can get concurrent, whilst your average burgler doesn’t get B&E, Theft, Theft of a motor vehicle etc concurrent.”

    Should be: I believe that what us average “joe bloggs” NZers would like to see is that a home-invasion, rapist, murderer can get consecutive, whilst your average burgler may get B&E, Theft, Theft of a motor vehicle etc concurrent [just the first time].

    Sorry again.

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  30. Graeme Edgeler (3,289 comments) says:

    I was joking,

    However, the basic rule of law is “innocent until proven guilty”. If we accept this – and I do – it inexorably follows as a matter of logic that anyone who has not been proven guilty is innocent.

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  31. Chuck Bird (4,884 comments) says:

    “it inexorably follows as a matter of logic that anyone who has not been proven guilty is innocent.”

    I agree as far as a penalty goes but if a person with string of violent offences was denied bail and they got found not guilty of say rape on a majority verdict I would not be happy for my taxes to pay them compensation.

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  32. F E Smith (3,305 comments) says:

    Chuck Bird,

    why not? They have been acquitted, and have been in prison for an offence that, at law, they didn’t commit. The majority verdict may simply suggest that you have some die hards on the jury who just won’t aquit, regardless of the evidence.

    I can give an example. A young man, 21 or 22, with a poor history of violence and some low level gang connections, is accused of raping a 15 year old. He denies it, but is denied bail on the basis that you suggest. Then the charge is reduced from one of rape to one of unlawful sexual connection (underage consensual sex) when the complainant changes her story, as well as further investigation provides strong evidence not just her consent, but her initiating the encounter. Then the charge is dropped when the police realise that all of their half dozen supporting witnesses say a) it was her idea and b) she looked 18 and told everyone she was 16. In the meantime the young man has been in prison on remand for 6 months.

    No charges are brought against the girl, who says she lied because she was scared of what her Mum would say. No compensation is paid to the young man, who, although having violence offences on his record, has never offended sexually before. But he has just lost 6 months of his freedom on false allegations.

    It isn’t always so clear cut.

    Pharmachick,

    I know it is a little pedantic, but home invasion and B & E are the same thing, Burglary. I take your point, though, and it has some merit.

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  33. Graeme Edgeler (3,289 comments) says:

    F E Smith – home invasion is burglary, but burglary is not home invasion.

    Chuck – you realise not guilty on a majority vedict mean 11 jurors saying not guilty and only one saying guilty, right?

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  34. Nostalgia-NZ (5,211 comments) says:

    ‘8; Implement practical methods of increasing judicial accountability for bail decisions, such as internal benchmarking of Judges’ performance and assistance for poorly performing Judges.’

    There’s a some big slants in the document, presumptions about the effectiveness of 3 Strikes that we are yet to see. Presumptions about those under 20. A clear error that Police don’t have the right to appeal bail. But probably most interesting (or disturbing) is 8 where the design has also concluded that a Judge was to blame. 8 included without a thought for an independent Judiciary, where rises the dictator? I wonder who gave the author input.

    Of course because we are such a ‘wealthy’ country we can maintain a high imprisonment rate and make law changes to belatedly ‘capture’ fairly isolated events caused by people such as Weatherston and, as it appears, Chand. F E Smith reported the other day that few victims choose to appear at parole hearings, I think that is understandable as was this comment from above..

    ‘RRM (4,723) Says:
    June 12th, 2012 at 12:56 pm
    But on a slightly more cynical note:

    Christie’s law… Sophie’s law… It’s amazing how many people will turn out and try to change the world in your posthumous honour if you were a pretty, young, white university student who was going places… innit?’

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  35. Pharmachick (235 comments) says:

    Nostalgia NZ:

    Nope … you’re flat wrong in your last paragraph/sentence … there has been plenty of outrage over Delcelia Whittaker, Lillibing, James Whakaruru etc… I need not go on.

    None of these kids were “young, white, pretty university students” but all of them made us sit up, listen and respond as NZ society.

    Stop using the straw man MWWS (missing white woman syndrome: http://en.wikipedia.org/wiki/Missing_white_woman_syndrome). I agree that in some circumstances that exists – but it is not, primarily; a Kiwi thing and we all are horrifies, as well as it is equally publicised when these kids are bashed or maimed or killed.

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  36. laworder (292 comments) says:

    Perhaps the easiest solution would be to deny bail where it is opposed by both the Police AND the victim/ victim’s family. This would largely address issues such as the Gwaze case and the scenario that Chuck outlined, while preventing future instances of offenders such as Chand reoffending on bail.

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

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  37. Nostalgia-NZ (5,211 comments) says:

    Pharmachick

    Not actually my last paragraph/sentence if you read it carefully.
    Also from memory the deaths of those children didn’t result in petitions and law changes, even though they were more specific to a wider problem that is unfortunately not random or isolated over a period of time.

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  38. RRM (9,924 comments) says:

    Pharmachick –

    Yes, the cases of all those kids you name got people’s hackles up, mainly c.f. “Those bloody maoris eh – what’s wrong with them?” but where is Delcieia’s law or Lilybing’s petition, etc etc?

    As I said…

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  39. Pharmachick (235 comments) says:

    Nostalgia-NZ,

    yes I *do* apologise about that, and agree that they weren’t your own words, rather a quote from another (RRM) that you chose to cite in agreement/support of your comment.

    At the risk of being pedantic, these were comments you were quoting in defense of your own position… ergo: you must agree with them. And if not, there wasn’t a fully disclosed statement in your original post.

    Meanwhile MWWS ma occur in the USA, but it seems that the NZ media is far less partisan/blinkered …etc

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  40. Chuck Bird (4,884 comments) says:

    FES and Graeme, I was giving a rough scenario. Now let us say the guy got bail and got found guilty. After a couple of years the young woman tells the truth. As I understand the law on compensation a criminal history could greatly reduce compensation. If the criminal history was bad enough maybe they could get no compensation. That is one point.

    A second point is that even if a person who has been wrongly convicted and imprisoned does not have a criminal record they do not get compensation if it is considered that they may be guilty on the balance of probability they do not get compensation like in the Rex Haig case. BTW – I think Rex Haig got a pretty bad deal.

    The point I am trying to make it that I do not think someone denied bail but acquitted should automatically get compensation.

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  41. nasska (11,525 comments) says:

    RRM

    Could it be that when a Maori kid gets killed no one dares to instigate petitions for law changes only because they will immediately be accused of racism or Maori bashing? The fact that it is Maori kids filling small coffins will of course be lost on the sickly white liberals who know in their tummies that somehow it must be the fault of the evil white coloniser!

    The aroma wafting unnoticed past the nostrils of the wankers will be the coffee.

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  42. Graeme Edgeler (3,289 comments) says:

    The point I am trying to make it that I do not think someone denied bail but acquitted should automatically get compensation.

    Denying someone bail for any length of time likely means that they will lose their house, job, and maybe family.

    I do know what the law currently requires re compensation, but am slowly coming to the view that it is wrong. We should lock up those who are (legally) guilty. If we lock up someone who is (legally) innocent, we should at the very least ensure they’re no worse off when they came out than when they went in.

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  43. F E Smith (3,305 comments) says:

    Graeme,

    yes, I know. Thanks. Although I thought that the term ‘home invasion’ became obselete as a matter of law in NZ in 2002?  Have I got that wrong?  Of course, in current definition of burglary you don’t need the breaking, either.

    laworder,

    Perhaps the easiest solution would be to deny bail where it is opposed by both the Police AND the victim/ victim’s family.

    The latter part of that would make little difference, really.  Police often oppose bail when there is no need to do so and no good reason to do so, and if you have a vengeful alleged victim/victim’s family then it makes no difference. The police are not a disinterested party; they are the investigating body and the prosecuting body, and have a professional interest in ensuring the success of their case.  They are in no way impartial and if anyone thinks that they are then I have a big bridge for sale in Auckland.

    On the other hand, sometimes the victim doesn’t want the alleged offender denied bail even when he/she should be in prison.  Mandating actions is always a problem in the criminal justice system. 

    That said, I note that an earlier incarnation of this pointless exercise (and it is pointless) included, from memory, a police veto on a judicial grant of bail?  Pleased to see that at least that has gone.

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  44. F E Smith (3,305 comments) says:

    I do know what the law currently requires re compensation

    It doesn’t require any compensation of any sort.   If you are on remand for 2 years and then acquitted, then tough luck.  If you are defending yourself privately, you probably wouldn’t even get an award of costs.  I know of at least one person who pretty much went bankrupt successfully defending serious charges.  Lost everything and had to start again from scratch.

     but am slowly coming to the view that it is wrong.

    Good.  It is.

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  45. Chuck Bird (4,884 comments) says:

    “I do know what the law currently requires re compensation, but am slowly coming to the view that it is wrong.”

    Graeme, you are a lot younger than me but I thought you would have worked out by now that life is not always fair.

    Under the current system a good parent with no criminal history is charged and convicted for child abuse. This is overturned on appeal. In the meantime the parent who happen to be a teacher loses her job and is up for massive legal fees. This is a real case that happened recently that also affected her husband who was also a teacher. I could find a link if you wish.

    My point is that she is unlikely to be compensated. It may be nice in theory if we could compensate many people. However, if it was a choice between compensating this woman with no criminal history and some criminal with a long history of violent crime who was denied bail I would go with the teacher.

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  46. F E Smith (3,305 comments) says:

    Chuck,

    I think Rex Haig got an appalling deal. And he has no way to to anything about it. Not Robert Fisher’s finest moment, that is for sure.

    I don’t think that having a bad criminal history would completely take away the right to compensation, but I haven’t looked at the Cabinet guidelines. Any claim really shouldn’t take prior offending into account unless it was relevant at trial. The threshold is pretty high, as far as I understand it.

    A denial of bail is currently based upon the defendant’s prior history, coupled with the circumstances of the alleged offending etc etc. The changes the SST is proposing would place far more emphasis on the charges, without taking into account the other relevant factors, such as the strength of the evidence etc. I think that there is less need for compensation following an acquittal under the current rules than if the SST’s were implemented. However, that is not to say that there is no need for compensation.

    That said, there is currently no compensation, so I this part of the discussion is speculative!!

    EDIT: Chuck,

    but my point is that the lady teacher in your example SHOULD be compensated, at least with an award of costs to cover her legal fees.

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  47. Scott Chris (6,139 comments) says:

    it inexorably follows as a matter of logic that anyone who has not been proven guilty is innocent

    Only relative to law which has a specific meaning different to the philosophical concept of innocence. In philosophy, innocence is an actual absence of guilt, not a perceived absence of guilt.

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  48. David Garrett (7,289 comments) says:

    Just got here after a day…working…The thread may be dead…but if it’s not…

    Graeme E: You know very well that “not guilty” is not synonymous with “innocent” ! It is neither the factual position nor ” a matter of logic” as you claim.

    tvb: Please do share with us how you KNOW that all (or even most) offenders don’t think about the consequences when offending? You make the common mistake of assuming that because most criminal offenders are poorly educated, they are also stupid, and dont have any appreciation of cause and effect. Perhaps you have never mixed with criminal offenders…May I recommend to you Sir Ernest Gowers book ” A life for a life”…it followed the British Royal Commission on Capital punishment in the mid 1950’s…it contains lots of interesting testimony from habitual criminals..

    The reality is that for the last 30 years or so, offenders “know” – whether instinctively or by deduction – that the consequences of their offending will be sentences which are derisory when handed down, and which they will only serve a fraction of anyway…Therefore, why the hell would they be deterred?

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  49. Chuck Bird (4,884 comments) says:

    FES, I fully agree with you about Rex Haig but I certainly would not be happy contributing to paying compensation to David Bain.

    “I don’t think that having a bad criminal history would completely take away the right to compensation”

    I agree but I think it should be major factor.

    I am a member of the SST. However, I make my views clear if I think what theyt are asking for in not reasonable IMHO.

    I would hope Garth would read, “Getting to Yes” , a book on negotiating. I do not beleive in union style negotiating – starting from an unreasonable position and backing off a lot.

    “8. Implement practical methods of increasing judicial accountability for bail decisions, such as internal benchmarking of Judges’ performance and assistance for poorly performing Judges.”

    Is reasonable but not expecting judges to be sacked. I met David McNaughton when I was a juror on a rape trial and he was the defence lawyer. The guy he was representing was the victim of a false accusation. I do not know all the facts of his ruling on bail but if the police were so sure of the risk they should have appealed.

    We will never get a perfect system. They will be people get murdered occasionally by someone on bail and people will be denied bail and be acquitted.

    I do not beleive that if there is a chance of another person being murdered by someone on bail we should stop bail for anyone with a criminal history. Just like I do not want the alcohol limit dropped to zero to save lives. Everything must be a balance and hopefully that can be achieve with a change to bail laws.

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  50. Nostalgia-NZ (5,211 comments) says:

    Chuck Bird

    Judges are accountable to appeal, and in the future, more so than now I expect, by Judicial Review. The not so hidden theme here is that the Courts and Judges should be by proxy accountable to lobby groups and not the Law. Such groups anticipate and actively participate in trying to be the Law Makers.

    I think you will find that David Bain will get compensation, for very clear reasons we will all be able to read.

    Rex Haigh’s position re compensation was anticipated and until now I’ve thought fair, fair that is under a law that judges a person twice, first on guilt and secondly on character. In more enlightened times the fact that Haigh most likely went to prison on the ‘word’ of the probable killer will be unsatisfactory to the point somebody in his position will be given compensation as of right, perhaps ‘shaved’ by the potential ‘involvement’ but nothing more. Tests of character, or propensity to commit a particular crime or other crimes will hopefully be seen for what it is – retribution. Hopefully such a situation will also deter unfounded prosecutions built of suspect evidence and deals as we saw in the case of Haigh.

    I haven’t answered these in order. But keeping to your last point, I now firmly agree on zero alcohol limit for driving. We are literally cavemen when it comes to drinking, and our rights to drink. I have no problem at all, and I’m sure that it would make the policing easier, and the observations about how much one might have had to drink before driving – to have zero tolerance to alcohol and can’t see how it could interfere with anybody’s right to enjoy themselves. One thing it would do would be to take the speculation and risk out of driving after drinking and make our roads a whole lot safer.

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  51. Graeme Edgeler (3,289 comments) says:

    May I recommend to you Sir Ernest Gowers book ” A life for a life”…it followed the British Royal Commission on Capital punishment in the mid 1950′s…it contains lots of interesting testimony from habitual criminals..

    I quite like his book on grammar and the use of simple language in writing. Are they similar?

    Also, as someone who has pulled me up on things like this, I believe the word you are looking for is “evidence”, not “testimony” :-)

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  52. Michael Mckee (1,091 comments) says:

    Pharmachick (196) Says:
    June 12th, 2012 at 3:22 pm

    yes, yes and maybe
    In that I am quite happy for a burglar to get 1 year inside for every burglary consecutive at least he won’t burgle whilst inside, and the people won’t feel violated or unsafe either whilst he is.
    prison does work, in that they don’t offend.

    I would prefer 3 yrs 1st offence, 5yrs on a 2nd offence and 10 yrs on a third but all with no parole.

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