Guest Post: Three strikes about to bite hard

A guest post by David Garrett, former ACT MP:

Three strikes about to bite hard

When the three strikes (3S) bill was making its way through parliament I told Clayton Cosgrove – in response to an interjection – that it might be ten to fifteen years before 3S would really start to bite. Although Cosgrove immediately tried to make capital from my answer, I was not  unhappy with that prediction – in fact I thought it a little optimistic. In my view we have taken a generation to get into the mess we are in with violent offending, and it might take a generation to reverse it. It seems I was unduly pessimistic.

Unless there are extremely good reasons which would preclude such a result, we are about to get our first  “strike” offender sentenced to Life Without Parole (LWOP) for murder as a second strike.  Justin Vance Turner, aged 28, has pleaded guilty to murder. It is his second “strike” offence, and accordingly, he should be sentenced to LWOP in accordance with s.86E (2) of the Sentencing Act. That section requires that a stage two offender guilty of murder should serve a sentence of LWOP “unless the court is satisfied that given the circumstances of the offence and the offender, it would be manifestly unjust to do so.”

The “manifestly unjust” provision was one of the conditions the Nats required in order for them to support the 3S Bill beyond first reading. It did not take long for ACT to agree to the amendment. The words “unless…manifestly unjust” have already been defined in case law. It is a very high hurdle to surmount. If for nothing else, Justice Graham Lang’s sentence notes will be pored over by everyone interested in 3S to see what he says about that phrase in the 3S context.

So what  “circumstances of the offence and the offender”  could cause Justice Lang to sentence to life imprisonment with a finite minimum Non Parole Period (NPP) instead of LWOP? As for the offence, in my respectful view there is absolutely nothing which would justify giving Turner the benefit of the “manifestly unjust” proviso. If the news report is accurate, the hapless victim – a homeless man – was kicked and punched until unconscious, and then Turner “continued stomping on him with enough force that  his head bounced off the floor.”

Given that Turner told police his intent was to kill, it would seem he had little choice but to plead guilty – although I suspect the motivation for the plea at an early stage (the trial was to begin on 1 December) was to try and avoid LWOP on the basis of an early guilty plea. Again in my respectful view, that is no reason to depart from the presumption created by s. 86E (2). Nothing in the 3S provisions of the Sentencing Act suggest early guilty pleas should be a factor in sentence.

What about the “circumstances of the offender”? Because of privacy laws we know little about him other than he has a first strike to his name  for serious  violent offending. There is a suggestion from the terms of the remand that his fitness to plead may have been an issue, but clearly that is no longer the case.

Again in my respectful view, if the court was to find that because of some psychological condition falling short of a “disease of the mind” which would be a reason for an acquittal Turner was prone to episodes of extreme violence, this ought to be even more reason to lock him up for the rest of his life. It is clear from his actions that he is a menace to society, and given his age, he will be for a long time.

One option the Judge has is to decline to impose LWOP, but to give a very lengthy NPP – say thirty or even forty years. If the Judge chose to go down that route the sentence would almost certainly be appealed. That is no bad thing, as it would give the Court of Appeal the chance to make some observation on the decision to apply the “manifestly unjust” proviso, and on the length of minimum NPP that ought to be imposed if the proviso was applied.

Finally it should be noted that LWOP as a possible sentence for murder was not  part of the original 3S Bill, although it was passed into law at the same time. At the 2008 election both ACT and the Nats campaigned on making LWOP available for our worst murderers.  From the aftermath of the  2014 election it appears both ACT and the Nats have lost the appetite  for law and order measures. In time, 2008 -10 may come to be regarded as a brief “window”  which opened and allowed our justice system to start dispensing real justice to killers – and their victims.