The three strikes bail issue
October 18th, 2012 at 7:00 am by David FarrarThe Herald reports:
Victim advocates are calling for changes to the three-strikes law to ensure offenders receive a warning for each crime they commit that is eligible under the law.
They say a “loophole” in the legislation means those who offend while on bail are avoiding strike warnings, and have asked Justice Minister Judith Collins to consider making changes.
I have blogged on this in the past and think a law change is very sensible, and in keeping with the intentions of the legislation.
Under the law, violent and sexual offenders receive a normal sentence and a warning for strike one, a sentence without parole for strike two, and the maximum sentence for that offence, without parole, for strike three.
A warning can be given only when someone is convicted. If they go on to commit further strike offences, they will receive further warnings.
But if they commit other strike offences between their arrest and sentencing, they do not receive a warning for it.
And there are already perverse incentives to commit further crimes on bail, as they may not lead to a longer sentence. If someone is charged with say rape, they should be told when given bail that if convicted of rape it will be a (say) first strike, and if they commite any other strikes offences while on bail, that will get them a second strike if also convicted.
If the charge does not result in a conviction, the provisional warning would be wiped.
As it should be.
By August, 1892 people had been given first strike warnings after being convicted for qualifying offending such as sexual or violent crime. Eleven offenders have been given a second strike.
We should get some fascinating data over time about the re-offending rates of those who get strikes, as compared to before the regime.
Related posts:
- Labour will repeal three strikes
- ACT’s Three Strikes law
- The Press on three strikes law
- Reaction to Three Strikes
October 18th, 2012 at 7:13 am
Whoops I need glasses
Vote:October 18th, 2012 at 7:23 am
Just do it, Judith!
Vote:October 18th, 2012 at 8:02 am
Separate sentencing exercises should also be carried out for convictions resulting from separate incidents. At present sentencing is ‘merged’ with an effective lighter sentence for the second etc incident. A judge should sentence for the first incident including any minimum term, then sentence for the second incident assuming that the offender has completed the sentence for the first term. So if someone murders two people in separate incidents, but is sentenced for them together, the offender should receive 2x life sentences and 2×10 year minimums (or more as appropriate in each case) making a 20+ year minimum sentence in all.
Vote:October 18th, 2012 at 8:08 am
This might make sense. If a person is charged with a three strikes offense and they commit another three strikes offense while the first case is before the courts then that will count as the next strike be it second or third. But only if they are convicted of both offenses. They can be given the “provisional” warning when they make their first appearance. It is quite possible a three strikes offence will be committed while in prison so I do not think it should be restricted to people who manage to get bail.
Vote:October 18th, 2012 at 8:10 am
THREE strikes. Still pandering to the human rights crowd and their criminal clients.
Vote:October 18th, 2012 at 8:16 am
‘peterwn’ raises an interesting point. To the man on the street the concept of cumulative sentencing reeks of a “commit multiple crimes for the price of one” scam. I understand that the principle behind the practise is to allow for hope for the offender but like much of our criminal justice system the dead hand of Dear Leader & her acolytes has watered down the punishment or deterrence aspect of sentencing.
Ms Collins could well sort out this crap at the same time.
Vote:October 18th, 2012 at 8:18 am
3 strikes may prove that jail as a punishment does actually work.
I hope some enterprising university is doing a statistical study on the 3 strikes law.
Vote:October 18th, 2012 at 8:32 am
Wreck we already know jail works.
But a university study on it? at great cost to the taxpayer? When we know the results will be….
Vote:1) 3 strikes doesnt work
2) poor people need more money
3) “more research is needed”
October 18th, 2012 at 8:36 am
Say a quiet thank you to David Garrett for this Three Strikes legislation.
Vote:His opponents could never criticise the measure. They could only attack his person and, boy oh boy, did they do that with a venom that makes a scorned woman look angelic.
October 18th, 2012 at 8:40 am
Kevin, it would be a better use of public money than supporting a thesis on the use of mathematics in a Marae kitchen.
McMurchy-Pilkington, C. (1995). Ina te mahi he rangatira: Māori women engaging in Mathematical activities in Marae kitchens. MEd Thesis (Unpublished). University of Auckland.
Vote:October 18th, 2012 at 8:41 am
Offenders already receive a warning/strike for each eligible crime they commit.
Those who offend while on bail do receive strike warnings.
Actually, they do receive a warning for it.
People who commit offence on bail face harsher sentences. Not only are they likely to lose bail, but the fact that an offence was committed on bail is an aggravating factor which increases a sentence.
An accurate description! What on Earth is that doing in this story?
Thank goodness. Thought we were about to go into an extended period of accuracy. But we didn’t. There is no exclusion of offences committed while on bail from the strike warning system. Strikes can be given for serious offending that occurs between the first charge being laid and the conviction being entered.
Vote:October 18th, 2012 at 8:47 am
Also worth actually reading the story, so as to see what Judith Collins has to say about the issue:
Ms Collins said she was not convinced the loophole existed.
“I do not agree that it can be described as a ‘loophole’. The ‘three strikes’ regime included in the Sentencing and Parole Reform Act 2010 is quite clear that specific consequences follow after an offender has been convicted of a qualifying offence and has been given a warning, and then goes on to commit another qualifying offence,” she told the Herald yesterday.
“The warning is part of the penalty imposed on conviction. It would not be consistent with the philosophy of the act if offenders were given a warning about subsequent offending before their guilt or otherwise on the original charges had been determined.”
Ms Collins said she supported the approach that only offences committed after an offender has been convicted and warned should be covered by the three-strikes law.
“I note that there is a draft members bill, the Bail [Serious Violent Offences Warning] Amendment Bill, that proposes to amend the Sentencing and Parole Reform Act 2010, so ultimately any changes would be up to Parliament to make. No reviews of the three-strikes legislation were planned over the next year.
“However, I am confident the legislation is an effective deterrent to criminal offending and that the system is working as intended.”
Vote:October 18th, 2012 at 8:50 am
How have the victims advocates got it wrong then?
Perhaps if they get a number of convictions worthy of a strike warning, but they are concurrent sentences then you actually only get one strike warning. OMG if it is, what a sickening little country we are. Five rapes = one strike warning?
Vote:October 18th, 2012 at 9:01 am
Where are the ‘three strikes’ for ‘white collar’ criminals?
Where are the statistics for ‘white collar’ crime?
Why are some ‘white collar’ criminals not even charged for strict liability offences?
Penny Bright
‘Anti-corruption campaigner’
http://www.dodgyjohnhasgone.com
Vote:October 18th, 2012 at 9:07 am
http://www.dodgyjohnhasgone.com/wp-content/uploads/2012/05/HOWCOME.jpg
Penny Bright
‘Anti-corruption campaigner’
Vote:October 18th, 2012 at 9:09 am
Penny why did you take my equality petition off your site? Did John Minto tell you to?
Vote:October 18th, 2012 at 9:16 am
I’d like to see a ‘three strikes’ Law that means that everyone who has been arrested three times for the same ‘offence’ is automatically sent up the hill. These ‘offences’ could include: causing a public nuisance / disorderly behaviour / stealing electricity / damaging water meters / wilful damage / obstructing the Police / bleating and waling on TV about being arrested / preventing people from going about their lawful business / trespass / imitating Davy Crockett / infiltrating blogs and bleating on and on about the same old thing……
Elaycee,
Vote:Attendee: Carterton Dog Trial Selection Night – Marquis of Normanby Hotel, 1980.
Attendee: SIS BBQ – [redacted]
http://www.save.skunks.from.exploitation.org
October 18th, 2012 at 9:25 am
errr…… small technical point Elaycee?
Just because you are ARRESTED for an offence – doesn’t mean you are GUILTY of that offence?
First of all – one needs to be PROVEN guilty?
In a Court of law?
Goodness me Elaycee – I would have thought that someone with your sparkling intellect would have known that?
http://www.dodgyjohnhasgone.com/wp-content/uploads/2012/05/HOWCOME.jpg
Kind regards,
Penny Bright
‘Anti-corruption campaigner’
http://www.dodgyjohnhasgone.com
Vote:October 18th, 2012 at 9:28 am
Sorry Kevin – I’m not sure what you’re talking about?
As an ‘Independent Public Watchdog’ – the person that decides the content on any of my websites is myself.
But thanks for asking.
You have a lovely day
Kind regards,
Penny Bright
‘Anti-corruption campaigner’
http://www.dodgyjohnhasgone.com
Vote:October 18th, 2012 at 9:31 am
Thanks Graeme Edgeler, always important to have the facts on the table.
Vote:October 18th, 2012 at 9:34 am
Thanks for clarifying that, Penny. So we trust you will stop implying that John Banks and Don Brash are guilty of various crimes.
Because they have not been “PROVEN guilty in a Court of law.”
Vote:October 18th, 2012 at 9:50 am
Graeme E: With respect Sir, I think you have not quite “got it”.
The scenario which gives rise to the “loophole” is this: Defendant appears charged with (say) robbery under s.234 of the Crimes Act. He is remanded on bail without plea (or after pleading not guilty). Because he hasnt been convicted, he can’t receive a “three strikes” warning. While on bail he commits an aggravated robbery. He is arrested and remanded in custody, and eventually appears for trial on both offences. Although they are two separate offences, separate in time, he can only be given a first strike because he has not recevied a warning for the first offence. You will know better than me whether the “totality principle” will apply here to in effect make the first offence a free hit.
What is proposed is that before being released on bail, he is given a “provisional warning”: “Mr X, I am now warning you that if you are eventually convicted of this offence you will be deemed to have had a first warning pursuant to s.86B of the Sentencing Act” If that happens, then the second offence can become the second strike. It can’t now.
The “loophole” undoubtedly exists. This scenario certainly was not in contemplation at the time the law was being considered – that offenders would commit second strike offences while still not having been sentenced for their first, let alone before they were even TRIED for their first.
It should be borne in mind that of the eleven second strikers we have so far, at least three of them committed their second strike offence while on bail awaiting sentence for their first.
Vote:October 18th, 2012 at 10:01 am
Why were John Banks and Don Brash NEVER charged for a ‘strict liability’ offence?
http://www.legislation.govt.nz/act/public/1978/0103/latest/DLM29406.html
How come neither the former Securities Commission, the Finance Markets Authority, the Serious Fraud Office or the NZ Police
charged John Banks or Don Brash, as former fellow Directors of Huljich Wealth Management (NZ) Ltd, for signing Huljich Kiwisaver registered prospectuses dated 22 August 2008 and 18 September 2009 which contained untrue statements?
https://docs.google.com/file/d/1OfbKNxoyZgDs1gZtA1zJLTYAl7sqjYDZgKrIXdUU21S2WRG2D7quY_VyXOKA/edit?pli=1
https://docs.google.com/file/d/1VFcJz_lUp51NMOdoJKpTTKVY0hJHLxYwSytctgRZzKTEbCD726XkkIKkyEpj/edit
Was this effectively a form of corrupt political protection in New Zealand – ‘perceived’ to be ‘the least corrupt country in the world’?
How is this not a fair question?
http://www.dodgyjohnhasgone.com/wp-content/uploads/2012/05/HOWCOME.jpg
Penny Bright
‘Anti-corruption campaigner’
Vote:October 18th, 2012 at 10:02 am
Graeme Edgeler Says:
“Stuff…”
Probably a good time to retract the post eh?
Vote:October 18th, 2012 at 10:07 am
David, And what about the serial rap[ist scenario – 5 separate rapes – convicted = concurrent sentence plus one strike right?
Its a good law but there really is no substitute for proper sentences and getting rid of that “sick lawyers party joke turned policy” of concurrent sentences.
Vote:October 18th, 2012 at 10:08 am
Penny – see my post at http://www.kiwiblog.co.nz/2012/10/the_three_strikes_bail_issue.html#comment-1036186
They have not been “PROVEN guilty in a Court of law” – to use your own words. So you should stop defaming them.
Until you address that, you merely show yourself – again – to be a hypocrite.
Vote:October 18th, 2012 at 10:10 am
Yet 30 minutes later you bang on about John Banks again. Sorry Penny, what you said above should be your last comment on the matter. You can’t have it both ways. If you don’t like your criminal activities and corruption exposed because there has not been a conviction, then we should never hear from you again about John Banks.
Unless you’re a batshit crazy, lying, criminal, hypocrite? You choose.
Vote:October 18th, 2012 at 10:11 am
Kevin: As I understand it, that’s right…(several rapes, one sentence, one strike) but that said (Graeme is a better authority than me) the sentence for such a person will not be quite the same as for one single rape…but it certainly Won’t be two (or three) consecutive sentences of a similar length to the one he would otherwise have received for a single rape. In other words, there will be a “discount”…
Vote:October 18th, 2012 at 10:19 am
@graham:
Ka – ching! Unfortunately, Penny never saw that one coming –
@zapper:
Or all of the above? Heh…
Vote:October 18th, 2012 at 10:25 am
I remember at intermediate trying the 4 move checkmate when playing chess with the teacher (hey, you would too if he made the others work while he tried to beat you). At first I thought, surely I shouldn’t do it, no-one could fall for this. But he did, and saying that word “Checkmate” is so sweet.
graham, I imagine you were thinking along the same lines with Penny, but she’s proven she really is that stupid.
Penny (on graham’s behalf): Checkmate.
Vote:October 18th, 2012 at 10:48 am
Someone being sentenced for several rapes will get a much harsher sentence that someone being sentenced for one similar rape.
Indeed, the likelihood is that a person being sentenced for several contemporary* rapes of different women is that that person could well receive preventive detention, which is highly unlikely for a first-time one-off rape, even a serious one.
* sentencing of historic rapes/child abuse can differ greatly, because the law as applied at the time of the offending is applied to the sentencing.
Vote:October 18th, 2012 at 11:02 am
“Why were John Banks and Don Brash NEVER charged for a ‘strict liability’ offence?”
Vote:If you bothered to read the section (as I have invited you to so do on countless occasions) you will see that it is not a strict liability offence in the sense that you portray it. There is a defence as you will clearly see and it must be apparent to anyone who has even the most basic understanding of the facts in this case (and is prepared to look at those facts objectively) that the defence was almost inevitably available to the directors other that Huljich.
October 18th, 2012 at 11:26 am
I understand the situation perfectly. You will note that the one place in the article that correctly describes it, I have described as accurate.
The article was so woeful in its descriptions of the current law, I thought that deserved being pointed out.
I do not think this is a “loophole”. It was a deliberate design feature, that was obvious to me, and should have been blindlingly obvious to anyone following the law. I believe it was raised obliquely in my submission. I had pointed out that the bill as then written did not provide a mechanism to challenge the wrongful imposition of a warning, or the failure of a judge to issue a warning where one was required. I think one example I offered was where a judge accidentally gave someone a second warning for offending that occurred after a first offence, but before the conviction and warning were entered.
It was a deliberate choice to limit progression to later strikes to offending that occurred after conviction. If you didn’t realise that was what the law provided for, well, you’ve only yourself to blame.
That said, and while I opposed the three strikes law, and continue to oppose it, I would have no problem with the change being proposed, as long as there was some formality around it. At present, warnings accompany conviction/sentence. In indictable cases and strike cases in particular, this is an event with some solemnity, and if your average offender doesn’t appreciate the consequences of a strike warning, they likely only have themselves to blame.
The major problem I see in practice with this proposal, is that the first call for people charged with new offences, even strike offences, is generally a very rushed event, it may even be before a community magistrate, depending on the circumstances. The offender usually won’t even have a lawyer, let alone one who is apprised of their previous strike history, and the whole thing is often over in two minutes, with the offender understandably having little or no idea what has happened. No-one has all the information, and the idea that an offender can and will be treated in a way that allows them to appreciate the importance of a provisional strike warning, or that the duty lawyer will be able to explain it to them (possibly in the cells) when they might be representing a dozen or more other people appearing that morning on all sorts of different charges, at all sorts of stages, does not accord with the reality of a busy list court.
P.S. if you or the SST are looking for other reactionary/conservative
changes to our sentencing laws, you should consider one that would allow a judge sentencing someone already serving an indeterminate sentence, to declare what the appropriate sentence would have been, but instead of imposing that sentence, to extend the non-parole period that person faces by the appropriate amount. That an offender with a life sentence who, for example, assaults a prison guard, can’t have that offending extend their minimum stay in prison is kind of stupid.
Vote:October 18th, 2012 at 12:39 pm
Graeme: Yes, I do recall vaguely recall your submission on this whole issue of warnings. And you make some good points in the above post re preliminary hearings.
To be honest, while I see this issue as of some importance, there is another issue of much greater concern. That is judges who decide – for whatever reason – not to give warnings at the time of conviction. Those reasons vary, and I do not want to say too much about it given my fragile relationship with the Law Society.
If you have not done so, you may wish to read Police v. Maipiara (aka Murphy) HC Whangarei, 16 April 2012. That decision should have at least clarified one important issue. Inevitably, when the first third strike occurs, the Supreme Court will no doubt be asked to give its opinion on the law as a whole. At great expense to the taxpayer no doubt.
And the point in your PS is well made. I will get right onto it!
Vote:October 18th, 2012 at 12:46 pm
I’m struggling with this one a bit, how can a first strike warning apply as having happened if an offender wasn’t at the time convicted of the first strike offence when going onto commit a 2nd strike offence? That’s what Graeme is saying at 8.41 I think. Is there a provisional warning at the offender’s first appearance, even before conviction?
Vote:October 18th, 2012 at 12:50 pm
Nostalgia: No, there is no provisional warning. But that is what those who have raised this issue propose.
Vote:October 18th, 2012 at 1:04 pm
Thanks David.
Vote:October 18th, 2012 at 1:10 pm
I hadn’t, but am now at a loss as to how the Police appealed that decision. Where was the jurisdiction for the High Court to even hear an appeal on whether a first strike warning should have been given?
Vote:October 18th, 2012 at 2:12 pm
Chand sane and guilty of assault but insane and not,guilty of murder. What a auto mockery of our criminal justice system. No wonder we are a laughing stock.
And as for “incarceration” in the mason clinic, forget it. He’ll be out on tours and enhancement therapy by lunchtime,on the first day. Zoo visits to instill empathy, trips to point chef beach to go wading, home for Xmas, new year, sick leave, bereavement, cultural events you name it.
This is another pc organisation who considers the criminally insane their “clients” and helping THEM, not protecting the public, is their “mission”.
Regional Forensic Psychiatry Services – Mason Clinic
Vision Statement
Vote:Improving Lives through Responsive Forensic Services:
Mauri Ora! Mauri Kaha!
Mission Statement
To achieve a world leading health service with people who have a mental illness and/or intellectual disability
within the context of criminal offending. Our service excellence rests on the pillars of our knowledge,
professionalism and values.
October 18th, 2012 at 2:32 pm
Kevin: We are off topic…but I must admit I am struggling with how you can be same for the purposes of assault and kidnapping, but then insane a couple of weeks later after carrying out a plan which was conceived at the time you were sane…But then neither you nor I are psychiatrists, and two of them – for the Crown and defence – both agreed….
Still, it makes one wonder….
Vote:October 18th, 2012 at 2:42 pm
Knowing nothing about the case, my assumption – because it did seem counter-intuitive – was something along the line that the rejection by the victim inherent in the arrest and charge set off the accused’s disease of the mind to the extent it rendered him legally insane.
Vote:October 18th, 2012 at 2:48 pm
Isn’t it that he pleaded guilty?
Vote:October 18th, 2012 at 3:11 pm
Graeme: Have a look at pp. 8 and 9 of the print edition of today’s NZ Herald if you can get a copy…it gives chapter and verse on what happened.
Although it is most often offered for murder, there is nothing preventing one claiming insanity as a defence to any other crime is there? Kidnapping for example? Even robbery? If you here voices, presumably they can be telling you to do anything…
Vote:October 18th, 2012 at 3:23 pm
No. The limitation, as provided in the Criminal Procedure (Mentally Impaired Persons) Act, is to imprisonable offences.
Vote:October 18th, 2012 at 3:36 pm
OK…so nothing stopping one offering an insanity defence to a charge of kidnapping then…
Vote:October 18th, 2012 at 5:13 pm
In order to DEFEND a charge – first you need to be charged?
Why were John Banks and Don Brash never CHARGED for a ‘strict liability’ offence?
Why did all the ‘regulatory’ bodies effectively act as ‘gatekeepers’?
How is that not a fair question?
Penny Bright
‘Anti-corruption’ campaigner.
http://www.dodgyjohnhasgone.com
Vote:October 18th, 2012 at 5:24 pm
Penny – see my post at http://www.kiwiblog.co.nz/2012/10/the_three_strikes_bail_issue.html#comment-1036186
John Banks and Don Brash have not been “PROVEN guilty in a Court of law” – to use your own words. So you should stop making defamatory comments about them immediately. You should stop accusing them of bribery, corruption, and filing false electoral returns – http://www.dodgyjohnhasgone.com/category/bribery/
Now, by accusing the ‘regulatory’ bodies of acting as ‘gatekeepers’, you are essentially accusing them of committing an offence. Hence, you MUST return to your earlier statement:
The ‘regulatory’ bodies have not been “PROVEN guilty in a Court of law” – to use your own words. So you should stop making defamatory comments about them immediately.
Until you address that, you merely show yourself – again – to be a hypocrite.
Vote:October 18th, 2012 at 5:38 pm
Penny
I will try to explain this as simply as possible because you have either a fundamental inability to come to grips with the issues or you steadfastly refused to do so. In the ordinary course of events, a strict liability offence is one where the offender is guilty regardless of the mental element of the offence. This is known as mens rea and is commonly regarded or referred to as a “guilty mind”. In most criminal cases, the Crown must prove not only the act but also the guilty mind. In the case of theft, the Crown must prove taking (which is the physical act) as well is the absence of any belief of entitlement. In other words, dishonesty.
In the case of the Securities Act, the “act” is the signing of the documentation which contain inaccuracies. Brash & Banks signed the documentation. There is no doubt about that. The Crown does not have to prove “guilty mind” ie that they knew that there were inaccuracies. The onus is on the defendants to establish the defence. If it is palpably obvious that the defendants will be able to show, in this case, that they had reasonable grounds for believing that the documents were correct then it would be a complete waste of time and money and effort to bring a prosecution.
The Crown must make some assessment of its prospects of succeeding before it initiates a prosecution. If, on the face of it, there is no prospect of securing a conviction then the Crown should not proceed. If it does proceed, it does so irresponsibly. The very fact that you do not like Mr Banks and will never believe anything that he says is not justification for the Crown to take a similar view.
Vote:October 18th, 2012 at 5:48 pm
Thank you for explaining that so clearly, Nookin – even my non-legal mind can understand that!
Vote:October 18th, 2012 at 6:02 pm
@graham: Nookin could tap it in morse code on Penny Not-So’s forehead and still the message would not get through.
All rather sad, really. Perhaps the Davy Crockett hat is too tight!
Elaycee,
Vote:Attendee: Ruakokopatuna Valley Stoat Hunt, 1980.
Attendee: Snorkel and Goggles Training, Bill Crow’s Spa Pool, 1984.
http://www.skunks.have.rights.too.org