Kiwiblog

Bloody Jadis. I turn my back for a few hours and she does a post on sterilisiation of child abusers after listening to Michael Laws on Radio Live. David Garrett comments, and suddenly it is in the newspapers, on Morning Report and all over the blogosphere.

I suppose time to add my own 2c to the debate:

1. Absolutely against any compulsory sterilisation. Apart from the fact no surgeon will operate on a non consenting patient, the state should not have the power to remove someone’s fertility.
2. Not supportive of the proposal to pay child abusers to get sterilised, as it will only target poor child abusers, and may be thin end of wedge.
3. However am open to having a debate on whether one could have it as an early release incentive for people who have been convicted of child abuse and actually gone to prison.

One of the reasons we send people to prison is to protect the community. If someone is sentenced to three years jail for child abuse, then is the community better protected by having them come out at 2.5 years and unable to have more children, or at three years and likely to have more children, whom will grow up abused, and in turn probably becomes abusers themselves.

By not having a monetary incentive, it removes the potential problems of being more attractive to poor child abusers.

Also by limiting it to people in prison, and convicted of child abuse, it means you target the worse of the worse.

I’m sure there are strong arguments against such a policy also, and I am not saying I support it without question. But unless one just wants to wring your hands about the child abuse problem, it may be a more palatable option than monetary incentives which I would not support.

David Garrett has a blog I have discovered, and his latest entry is on why he is against the death penalty:

Having lived in a country where the death penalty remains on the books as a discretionary sentence for murder, I can say with some certainty that one of the results of having a capital sentence even as an option is what lawyers call “perverse verdicts” by juries unwilling to convict because they know or believe the person concerned will be executed, and they cannot cope with that on their collective conscience.

I suspect Garrett is right – more killers might be found not guilty, due to juror reluctance to return a verdict which can result in execution.

I have also come to believe that Life Without Parole (LWOP) which is available as sentence in many American States – and soon will be here – IS actually probably a worse punishment than the 20 or so seconds of terror prior to instant death by judicial hanging as was practiced here and in England.

The downsides of LWOP of course include the cost, and as Burton has demonstrated (he will never leave prison alive and he knows it), someone serving LWOP can kill again with impunity – there are guards as well as prisoners in jail – and there is nothing more the state can do.

I have different reasons for being against the death penalty. I just do not like the idea of giving the state the power to execute its own citizens – even the killers. Plus the chance of killing an innocent person.

The Herald reports:

A diluted but still hardline version of Act’s three strikes policy is now on the negotiating table with the National Government.

Act MP and three strikes architect David Garrett said Act would support any amendment that would have impact, citing a “three strikes and the max” version.

Instead of the third strike offence leading to the offender being “struck out” with a 25-year-to-life sentence, they would instead get the maximum sentence for the offence.

Mr Garrett said this would see an offender whose third strike offence was aggravated robbery serving 14 years – the maximum prescribed in the Crimes Act – rather than the four or five years such an offender would likely serve now.

I wish to point out back in March I blogged:

I would change the third strike from life (with no parole for at least 25 years) to being the maximum penalty set down for that offence

I think this achieves the aim of dealing harshly with repeat offenders, but avoiding the possibility of someone getting a life sentence for a relatively minor offence.

The three strikes and the maximum version would also allow for a “life means life” sentence if the offender’s third strike was murder, which would satisfy the call of many law-and-order hardliners.

Yep. It is worth noting that murderers can also now get sentenced to life with no parole under changes introduced since the election.

I hope National can back the law as amended. The main issue will be what crimes qualify as a strike.

Of interest to some will be whether the amended law, if supported by National, meets the iPredict contract:

This contract pays $1 if the National Party votes for the Sentencing and Parole Reform Bill (2009) at its second reading. The Sentencing and Parole Reform Bill must include a requirement that courts impose a minimum period of imprisonment of 20 years for the third qualifying sentence for this contract to pay $1.

It would seem not to meet the contact, based on the Herald story. The longer description is:

1. The National Party votes for the Sentencing and Parole Reform Bill (2009) at its second reading.

2. The Sentencing and Parole Reform Bill (2009) includes a “three strikes requirement”, defined below.
For the purposes of this contract, a “three strikes requirement” means:

1. The definition of serious violent offense (or equivalent wording) in the bill includes, at a minimum, murder and attempted murder.

2. Courts are expected to be REQUIRED to impose a minimum period of imprisonment of at least 20 years for the majority of offenders on their third serious violent offence.

As some serious violence offences have maximum penalties of less than 20 years, I think this contract will close at zero, even if National vote for the law as amended. However this is based on the NZ Herald story being accurate!

The Dom Post reports:

The firebrand MP is in hot water again after claims that he challenged a Labour MP to “take this outside” during heated exchanges in a select committee. …

ACT leader Rodney Hide said he was not aware of the complaint, but dismissed the claims. “When the Labour Party says things, my experience is they’re not true.”

Rodney has a fair point, but it is also true David has taken a fair while to shall we say adjust to the way Parliament and MPs should operate. Not having been there, I have no idea what really happened.

Prime Minister John Key says if allegations against ACT MP David Garrett are true, Parliament should take a hard line in disciplining him.

That is a good attitude for the PM. I recall a previous PM who refused to comment in any way negatively about conduct of Government MPs not from her party. You gained the impression that if Winston has opened up with a machine gun on Lampton Quay, Helen’s response would be something along the lines of “Winston’s murdering of 87 civilians and three police officers on Lampton Quay was done in his capacity as an MP, not as a Minister and hence is an internal matter for NZ First to comment on. As Prime Minister I have no responsibility for what Mr Peters does as Leader of NZ First”

UPDATE: From NZPA:

ACT leader Rodney Hide says his MP David Garrett did not threaten a Labour MP.

Labour alleged Mr Garrett suggested he and Labour’s Clayton Cosgrove “take this outside” during an argument in a closed session of Parliament’s law and order select committee.

However, Mr Hide says he said “let’s just leave that outside”, meaning “let’s get on with the work.” …

Mr Hide told NZPA he was angry and accused Labour of making up allegations, laying complaints that would fail in order to get media attention; and abusing the process by making public details of a closed session of a parliamentary committee.

He said Labour leader Phil Goff had set a bad example by putting out partial stories to grab headlines.

“If they thought they had a case against David Garrett, and the allegation is a serious one, they would have done it properly, put it to the Speaker and shut up,” he said.

“If someone had threatened another MP in a way that was a breach of privilege it would be very serious indeed, and be sent off to the privileges committee to be handled properly. You wouldn’t be running off to the media.”

If the Speaker decided there was no case to answer Labour should apologise, Mr Hide said.

Rodney makes a good point – if you know your case is strong you don’t pursue it through the media.

It is part of our constitutional conventions of parliamentary privilege that people can give evidence to select committees without fear of retribution for what they say. Therefore I regard it as a bad look to see the story:

After Bart Birch, Uaea Leavasa and Satish Prasad criticised how Auckland Central Remand Prison was run under private contractor GEO between 2000 and 2005, Mr Garrett weighed in.

“You say that you don’t want to go back to working in this environment – to the private [sector]. You’d be aware that given your submission here, you wouldn’t get offered a job anyway, would you?”

Fortunately other MPs intervened:

Other MPs were visibly disturbed by the remark and National’s Shane Ardern was quick to reassure the men that they should feel free to speak their minds. “Can I say, from my own party, you can sit here without fear or favour,” he said.

The committee’s acting chairman, Labour MP Clayton Cosgrove, added his support to Mr Ardern’s remark.

David Garrett’s comment was most unwise. You could defend it as saying he was stating the obvious, but in that case there was no need to state it. And at worst it looks like trying to warn people off criticising private prisons.

Questions at select committee should focus on the submission, the bill and related policy issues. If I made a submission arguing that (for example) Kiwibank should be sold, I would not expect to have an MP tell me that I should not expect to ever get any work from NZ Post.

The HoS reports:

A Government MP has been reprimanded for lewd conduct just weeks after the resignation of National’s Richard Worth.

Act MP David Garrett was spoken to by party leader Rodney Hide after making sexual comments to a female member of the party’s Parliamentary office.

Hide said last night he had cause to speak to Garrett after learning the fledgling MP had made “off-colour” remarks. He said he hoped the incident would not lead to the end of Garrett’s career as a member of Parliament. …

Hide said the matter could be escalated to the Parliamentary Service – which employs the staff member – if there was a formal complaint. He had met with the staff member to assure her any complaint she made would be handled properly.

Hide said Garrett was “a guy who has come from a rough, tough background”.

“I explained to him we set high standards in our Parliament across all parties.

“It is a learning experience in becoming an MP. I said it is good he can learn quickly – because he has to.”

Act president Michael Crozier said he had been unaware of the incident but expected a report to be made to the party’s board when it next met in a few weeks. “David has a lot to learn. He really hasn’t been in the Parliamentary side of politics before. You have to learn quick.”

University of Otago political scientist Bryce Edwards said Hide could not be faulted for his handling of the incident. But he said the incident was a “blow” for Act and the National Government.

Rodney sounds pretty unimpressed. As he said, you need to learn quickly what you can and can’t say when you are an MP. That’s one reason I’ll never be an MP – my sense of humour is far far too black to survive such a standard.

No Right Turn has died of shock, upon finding he agrees with ACT MP David Garrett on how it is “incomprehensible” that the police officer who shot Naitoko is not facing charges.

Garrett says:

While not charging the officer concerned with manslaughter is probably justifiable, it seems incomprehensible that the officer is not facing charges under the Arms Act for failing to properly identify his target

The Herald on Sunday editorial also touches on this today.

The Herald reports:

The Act MP who designed the proposed three strikes law says National has expanded it to include offences like bestiality in a “Machiavellian” attempt to make it look unworkable.

National has toughened the law by adding 20 crimes like bestiality, incest and acid throwing to the list of “strike offences” that could see a repeat offender sentenced to life imprisonment with a 25-year non-parole period.

But hardline Act MP David Garrett said many of the new offences arguably did not justify a life sentence and were possibly an attempt to undermine three strikes.

“It may be a Machiavellian move by National designed to sink the three strikes provision. Many will say incest, for example, while a deeply unpleasant offence, should not be a reason to send someone to jail for 25 years.”

Good to see there is agreement on that. But I don’t think it is so much designed to undermine three strikes, as that National is focused on the second strike – what offences should mean you do not get parole if you get a second conviction of over five years.

Justice Minister Simon Power said Act had actually agreed to the expanded list of offences.

Mr Power said the list was designed to fulfil National’s own parole policy, which would deny parole to those convicted of a violent offence punishable by five years or more if they had committed a similar offence before.

Mr Power said when three strikes was merged into the bill, “as part of that process Act offered to adopt our list of offences, and we accepted.”

The problem faced here is that you want the second strike (no parole) to cover a much wider range of offences than the third strike (life with no parole for 25 years at least) because the third strike is so severe.

I think there is a workable solution to this, that also overcomes some of the Bill of Rights issues around someone given a 25+ year sentence for an offence that normally has a maximum sentence of say 10 years.

I would change the third strike from life (with no parole for at least 25 years) to being the maximum penalty set down for that offence (with no parole if a finite term).

So what you would have at each stage

1. Normal sentencing and normal parole
2. Normal sentencing and no parole
3. Maximum sentence and no parole

What are the maximum sentences for the various crimes that National wants included:

• Sexual violation – 20 years
• murder – life (so non parole of at least 25 years on 3rd strike)
• attempted murder – 14 years
• manslaughter – life (so non parole of at least 25 years on 3rd strike)
• wounding/injuring with intent to cause grievous bodily harm
• aggravated wounding/injury – 14 years
• aggravated assault – 3 years
• assault on a child – 2 years
• cruelty to a child – 5 years
• using a firearm against a law enforcement officer – 14 years
• committing a crime with a firearm – 10 years
• Compelling indecent act with animal – 14 years
• incest – 10 years
• acid throwing – 14 years
• robbery – 10 years
• aggravated burglary – 14 years
• kidnapping – 14 years
• indecent assault  – 7 years
• attempted sexual connection with a family member who is under 18 – 7 years
• abduction for purposes of marriage or sexual connection – 14 years

This would still provide for very harsh penalties for the third strike, but would not treat murder the same as wounding. Take rape as an example.

The starting point for rape (off memory) set by the Court of Appeal is seven years. So a rape with no aggravating factors would get seven years and with parole the rapist would be out in four years and eight months.

Now if he raped again, the court might give him ten years for the second strike. And no parole means he would serve ten years – double the first strike.

And if he raped a third time, when it is an automatic maximun penalty of 20 years with no parole.

Of course he might get preventative detention also, but that is not guaranteed.

I think this would be a win win. ACT still gets a three strikes law and a major win. The Bill of Rights issues over getting 25 years for an offence set down in statute as having a maximum sentence of say 10 years are dealt with, and most importantly hardcore repeat offenders stay behind bars for much much longer.

Rodney may have his hands full with David Garrett. At Backbenches last Wednesday he surprised a few by advocating a Sheriff Joe type prison of war camp at Waiorou for hardened criminals, with food to cost only 75c a day instead of the current $5.

And the HoS reports he caused waves at Eye to Eye, and was allegedly drunk. However (and you have to look hard to find this, the show was recorded in June before he was an ACT candidate):

During the show, Garrett, speaking slowly and occasionally slurring, made rambling comments which were rubbished by the other panellists, particularly former Act MP Deborah Coddington.

My motto is to drink after the TV show, not before! Mind you on election night it was a mxiture of both!

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’.”

She said recording was stopped several times because of Garrett’s behaviour but didn’t think any more about the incident until Act announced Garrett as a list candidate.

Which was some months ago.

Garrett confirmed he made the comment to Coddington.

“That was a stupid thing to say. But I might have said it stone cold sober.”

He denied he was homophobic and said the other panellists had not listened to his arguments.

“What I said was, paedophilia is a sexual orientation just like homosexuality or heterosexuality. Deborah Coddington just didn’t get it.

“I am not saying gays are the same as paedophiles. One of my closest friends is flagrantly gay. He was the MC at my wedding.”

Garrett said he “certainly regrets” his long lunch and had rung Hauiti to apologise. “It’s certainly not appropriate behaviour for an MP.”

Not a helpful story, but when I first read it, I thought this had just happened this weekend. It is somewhat of a different story that it was before he was even a candidate.

Oh and for the record homosexuality is a sexual orientation. Paedophilia is a psychological disorder.

The election may be over but Backbenches carries on. Tonight:

• David Garrett, ACT List MP
• Keith Locke, Green List MP
• Charles Chauvel, Labour List MP
• Nikki Kaye, National MP for Auckland Central

They’ll be talking about the new Government, and voter turnout. So come along to teh Backbencher by 8.30 pm for a 9 pm start. Or watch it on TVNZ7.

Should also serve as a good excuse for people to have a couple of drinks to celebrate or commiserate the election outcome.

The Standard speculates that David Garrett may be ACT’s mystery No 5 candidate. He is a barrister associated with the Sensible Sentencing Trust.

By coincidence Garrett had a column in the Herald on Wednesday on Labour’s sudden interest in banning gangs:

There is nothing particularly radical about Labour’s endorsement of a policy banning gangs – which begs the question why it has taken so long. …

Given Labour’s long opposition to such laws it is difficult not to be cynical about its timing now – eight weeks from an election.

Indeed. The chance of Labour actually passing a law to ban gangs is around equal to their chance of developing nuclear weapons.

The point is well made that banning gangs per se may not in fact be such a good idea – at least while the Mongrel Mob and Black Power strut around in their patches or “colours” they are easily identifiable.

True.

Criminal non-association laws would have the same effect without the disadvantages.

The police are aware who most gang members are and which of them have criminal records. If consorting with known criminals becomes an offence, groups of intimidating thugs on our streets would quickly become a thing of the past. Problematic laws banning gangs themselves would become unnecessary.

But how many criminals are needed for it to become consorting? Some would argue Cabinet would become illegal

Although it’s about 25 years too late, Labour’s belated realisation that gangs are just criminal organisations, and not some alternative to whanau, is a welcome development. Pity it comes so close to an election.

Just a coincidence I am sure.