Kiwiblog

Michael Laws writes:

In short, the policy properly aligns sentencing for serious criminal acts with parliament’s intent. The great frustration for generations of politicians has been that they create the law, only for the courts to screw it up.

Sentencing is a classic example. The law isn’t even much use as a reference given that the courts can, and do, set their own generous compensation to mitigate any maxima. To make matters worse, parole provisions frustrate even that intent. Now violent and/or sexual offenders get a strike for their first offence, no parole for their second, and the maximum prescribed sentence for their third. …

We want the deranged, the psychotic and criminal classes as far away from us as possible, for as long as possible. Releasing the addled and anti-social back into our community can only create new victims. Indeed, you might argue that the cost of recidivist reoffenders – their arrest, charging, legal aid, trial, sentencing and the like – is actually more expensive than throwing away the key. Certainly for their victims.

And, although criminals are not the brightest species on the planet, neither are they wholly moronic. The three strikes policy has the capacity to reduce offending by scoping a harsher environment. The Californian experience shows that the stick can work: the policy sends an understood message.

Not much to disagree with there.

The Press editorial:

The compromise reached between National and the ACT Party on the so-called three-strikes regime for dealing with repeat violent offenders is a sensible one.

It eliminates flaws in the original bill and will produce a law that deals effectively with the worst of our violent criminals in a way that voters have shown they want. It reflects a policy on which both the ACT Party and National campaigned during the last election, but the substance of it is from ACT and thus represents another considerable political achievement for the party’s leader, Rodney Hide.

Credit goes to Rodney and David Garrett for securing an agreement. And while it will take a few years to take effect, it’s going to be great knowing everytime someone gets convicted in court for a serious violent or sexual offence, that on their third strike they will be spending a long time in prison.

Under the proposed regime, a person who commits one of the 36 qualifying offences will be sentenced in the same way as they are now. That means that if the sentence is one of imprisonment, then only a part of this must be served in prison. But offenders will be warned that if they commit a second of the qualifying offences, they will receive the same sentence as they would now but will serve, in prison, the whole of any term of imprisonment they are given. On a third offence, the sentence will be the maximum for the crime and all of it will have to be served in prison. The only exception would be if it were “manifestly unjust” for such a sentence to be imposed.

And those who get to their second strike will know that if they seriously offend again, there is no real chance of just a short prison sentence, with early release on parole. If they rape they will do 20 years in jail.

But, more importantly, evidence from other jurisdictions clearly shows that similar laws elsewhere have deterred serious crime. The most commonly cited example is the three-strikes law in California. The California law was not well constructed and has flaws that the bill proposed here has eliminated. But, for all those flaws, academic studies have shown that the law, which has been in effect for more than a decade, has measurably deterred the crimes it covers, despite a rise in other offending.

Incentives work. But even putting aside that debate, if a serious violent or sexual offender is in jail for longer, then they are not able to menace the public as often.

The Herald reports:

National and Act have agreed to pass a three-strikes law under which some killers will be locked away in prison without any chance of release.

Once an offender is convicted of a third serious offence, the judge will have to impose the maximum sentence for the crime.

For murder and manslaughter, the maximum is life imprisonment.

Murderers will actually face life without parole on their second strike – if convicted of murder. The second strike is the normal sentence with no parole. However the only sentence for murder is life. So if a murderer has one previous convictions for a serious violent or sexual offence, then they will get life with no parole (if both offences occur after this law has been passed).

Labour says the move is a gimmick that falls well short of what National was promising before the last election.

Labour, as usual, is wrong. National did not promise three strikes at all. This policy goes well beyond what National promised. It is a pretty major victory for ACT.

Crimes committed before the law is passed will not be covered, so it may be about eight to 10 years before the first offender is sentenced under the three-strikes law.

I think it is right, not to have the law apply retrospectively. But this is why it will take some time to have a full impact. But it may not be as long as the Herald says, as someone can get a first strike if convicted of indecent assault, even if not sentenced to prison. So they could end up on their second strike very quickly.

It is also worth noting that the original bill also allows a Judge to sentence, at their discretion, a murderer to life without parole regardless of strikes. So a Weatherston type murder can attract a life with no parole sentence, even though he he no previous offending.

Stuff reports:

The Maori Party says it is appalled by the Government’s proposals for a “three strikes” sentencing policy, which would see repeat violent offenders who kill spend the rest of their life in prison.

Not surprised, but they don’t get a veto.

I don’t normally report results of NZ Herald web polls, as they are unscientific. But it is still notable that a staggering 96% of respondents are backing maximum penalties on the third strike. This will be a very popular law, and I will be fascinated as to whether or not Phil Goff can convince his Caucus to vote for it.

John Key, Rodney Hide and Judith Collins have just announced an agreement to implement a version of ACT’s three strikes policy.

They key difference is that the third strike is not life without parole (unless the strike is for a homicide), but for the maximum sentence (without parole) for that offence. So if the third strike is an indecent assault, they get seven years (the maximum), not life.

This compromise is very sensible, and in fact near identical to what I proposed back in March 2009. Great minds think alike

The three strikes regime will only apply to serious offences, which generally are violent or sexual offences carrying a maximum sentence of at least seven years. The three strikes will be:

1. Judge decides term of imprisonment, and Parole Board can let out early on parole (near automatic at two thirds of a sentence)
2. Judge decides term of imprisonment, but no eligibility for parole
3. Judge has to sentence for maximum term for that offence, with no parole, unless doing so would be manifestly unjust

This will not affect a huge number of criminals, but it will mean the repeat serious violent and sexual offenders will not get released so quickly.

Also the Sentencing and Parole Reform Bill (currently before the Law & Order Select Committee) allows a Judge (regardless of which strike) to impose a sentence of life without parole on the worst killers – so a Clayton Weatherston (for example) would never be eligible for parole until he was old and infirm. This won’t apply to all murderers – just the very worst ones – the Bells, the Burtons, the Weatherstons.

On a process matter, I’m pleased to see the Government is recommending to the Select Committee that they reopen submissions to allow submitters who previously submitted, to submit on these proposed additions to the Bill. All too often the Government introduces major changes after select committee hearings, and then the public have a limited opportunity to have their say.

As I said, I’m very pleased with the agreement. It is a good win for ACT, and a good policy for the Government. Apart from the fact it will be very popular with the public, it is also the right thing to do – repeat serious offenders should be locked away for longer.

The Government has done something novel as part of a consultation. It has actually released a draft bill for purposes of consultation. This allows people to give feedback on precise details. The bill is based on the criminal procedure simplification project, so will be controversial within the legal profession.

The bill divides offences up into five categories of seriousness. They are:

1. punishable by fine only
2. punishable by a maximum term of imprisonment not exceeding 3 years
3. an offence punishable by a maximum term of imprisonment of more than 3 years that is not a category 4 or 5 offence
4. an offence listed in Schedule 1 of the bill (rape, wounding, kidnapping, arson etc)
5. an offence listed in Schedule 2 of the bill (murder, treason, MP corruption, slave dealing etc)

It is proposed that the first two categories be dealt with by way of judge only trial. No Right Turn is hotly against this, and says it is a breach of the Magna Carta.  He concedes that minor offences do not currently have a right for jury trial, but says a punishment of three years is not minor.

The current law does not allow jury trials for charges where the maximum term is less than three months, so in effect the proposed change is to move the threshold from less than three months maximum, to a three year maximum.

I blogged back in May on this, and listed the offences I could find that would then be tried by a Judge only. They include indecent acts in public (two year max), aggravated assault (three years max), assault with intent to injure (three years max), assault on a child or female (two years max), and theft of less than $1,000 (1 year max).

I am comfortable with the threshold lifting from less than three months, but am not sure if three years is about right or too far. So I did some research.

First of all I thought, what do people actually charged with these offences end up serving. It is almost impossible to ever get the maximum sentence.

The percentage of convictions for an offence listed above, that even got a custodial sentence was very low – ranging from 3% for minor assaults to 15% for male assaults female. This is from Stats NZ 2008 stats.

Then we go to the Ministry of Justice conviction and sentencing report for 2006. Of the 15% who get a custodial sentence for male assaults female, the average prison term is six months. With parole it means out in three months. So 85% get no prison term, and 15% serve an average three months in jail (and these are probably people who have dozens of offences chalked up by then). Is that serious enough to need a jury trial, considering the delays that mean for the victim?

A minor assault has an average prison term of just 1.9 months, so on average out in 30 days.

For theft, only 6% of convictions get a custodial sentence, and the average sentence is 5.6 months so out in 90 days.

Only 2% of cannabis use convictions are custodial, and the average sentence is 0.9 of a month.

Now I have not checked every single offence with a maximum penalty of three years or less, so I am open to persuasion that a threshold of two years or even one year could be more appropriate, but for the most common offences, the resulting penalties are overwhelmingly non-custodial.

The Minister estimates this change would reduce the number of jury trials by around 1,000 a year. It would be useful to have that broken down by type of offence, so one could see what different it would make to have the threshold at say two years instead of three.

Finally, I was interested in what other OECD type countries do – where do they draw the line?

• France – jury trials reserved for most severe crimes only
• US – Supreme Court has interpreted the constitutional right to trial bu jury as only applying to offences with a maximum sentence of six months or more
• Australia and UK – no threshold as far as I can tell
• Austria – serious criminal cases only
• Belgium – grave crimes only
• Canada – only for crimes with a maximum sentence of five years or more
• Germany – no juries, but lay judges alongside professional judges
• Greece – a panel of three judges and four lay jurors
• Italy – only for serious crimes like murder, and a panel of 2 judges and 6 laymen
• Japan – From May 2009 jury trials resume but only for severe crimes
• Singapore – death penalty cases only
• Israel – no juries (as British did not trust the locals)

I find it interesting the countries with a jury made up of judges and lay people. Do teh Judges dominate the lay members of the jury?

The Herald reports:

Anti-violence campaigners have condemned the penalty handed to a Taranaki rugby player who strangled his pregnant partner but escaped with a $750 fine.

Paul Perez, 23, lifted his partner Dana Carlyle Brooks off the ground in May, choking her until she almost blacked out, before he punched her in the nose.

And he gets a fine only slightly more than speeding tickets.

Jane Drumm, executive director of Shine (Safer Homes in New Zealand Everyday), said the sentence was “just not acceptable” and she was extremely concerned for Ms Brooks’ safety.

“When someone puts their hands around a person’s throat and does that, that means they’re very close to being killed,” she said. “That is how women die.

Strangling is no minor assault. It is an attempt to kill, not to hurt.

The Herald reports:

Manukau District Court Judge Roy Wade will add an extra year to the starting point for prison sentences for criminals who commit aggravated robberies on small business owners.

From Monday, that will mean five years in jail, instead of the four-year guideline set by the Court of Appeal. …

“Anyone who holds up a retail shop in South Auckland, whether it be a dairy, a liquor store or any other kind of retail premises, is going to go to prison for a very long time,” the judge said.

“That will be the case whether they are young or old, and regardless of their personal circumstances. There will rarely be any question of home detention or community detention, and the only issue will be the length of the sentence.

And Judge Wade gets support from an unlikely source:

Experienced defence lawyer Lorraine Smith, who spends much of her time in the Manukau court, supported Judge Wade’s decision.

“When you consider the maximum penalty for aggravated robbery is 14 years, four years is no deterrent whatsoever,” said Mrs Smith.

“People have no fear. If sentences were higher, they might well think twice. But what’s four years when that time is likely to be sitting in the sun with their mates?”

And when you could get parole after one third of your sentence, due to Phil Goff’s 2001 law change (which they retreated from just before the election)

Counties Manukau district commander Superintendent Mike Bush acknowledged the area had the worst statistics for violent crime in the country.

But police were focused on organised crime, drugs, alcohol and youth, and had short- and long-term plans to tackle the problems.

A stronger presence on the street, made possible by the appointment of more officers under the Government’s plan for an extra 300 police, was already making a difference, said Mr Bush.

Last week, he said, the suburb of Otahuhu went 24 hours without a house burglary being reported, which was “unheard of”.

That just may be both the saddest and the funniest thing I have read today. Not that there were no burglaries, but that a burglary free day had never occurred previously.

The Herald reports:

The Sensible Sentencing Trust has been warned it is going too far by calling on its members to break the law and defy court orders that censor victim impact statements.

Trust chairman Garth McVicar yesterday said members would say whatever they wanted in court until the law was changed.

His comments follow the news that Gil Elliott, father of murder victim Sophie, was forced to read a censored version of the statement he had prepared.

But the Law Society said the trust was using the wrong strategy if it wanted change.

Mr McVicar said the trust would run the “civil disobedience campaign” until Justice Minister Simon Power changed the law to give victims greater freedom with their statements.

The Herald yesterday revealed that sections of Mr Elliott’s statement had been crossed out at the judge’s request the night before Clayton Weatherston was to be sentenced.

Mr Elliott said it meant he did not get to “have a crack” at Weatherston, who stabbed his daughter 216 times.

There are two issues here – both the “censoring” of victim impact statements, and the way it is done.

From all accounts the process is very insensitive to victims families. They spends day and weeks working on their statements and then the day before court get sent the officially approved version. That is crappy.

The content issue is more difficult. First off I have to say they Courts should be more liberal as to what they allow. The trial is over. The sentencing is being dine by a Judge who will know what to take into account, and what not to. So let the victims and their families actually have the chance to say what they think. Especially when they have had to endure the trial.

Now that is not an argument for no rules at all. I don’t think we want victims or their families able to get up and say I hope you get killed in jail etc.

Mr McVicar said the campaign had been planned for some time and several members yet to present their statements in court had committed to reading them in full.

He said the campaign would go on, even though Mr Power had assured him yesterday that changes to statement rules would be announced by Christmas.

Personally I would wait to see what the changes are – Christmas is barely a month away.

Law Society president-elect Jonathan Temm said the issue was not going to be solved by contempt of court.

“You cannot bring the court into disrespect simply because it is bound by the law of the land.”

Mr Temm agreed that while improvements could be made to the process, the campaign was the wrong way to do it.

He questioned whether the Sensible Sentencing Trust would be satisfied even if the law was changed.

“Victims may be able to spend an hour on their feet, railing against the crime, have everybody listen to their anguish and pain and grief, and flog some individual.

“But no amount of victim latitude at sentencing is going to bring back the loved ones or heal the crushed bones.”

With all respect to Mr Temm, victims and their families know that. But there can be something very therapeutic in being able to look the killer in the eye and tell them they are scum of the earth.

VICTIM IMPACT STATEMENTS

What the law does now:

* Victims can speak of the impact of any physical injury or emotional harm suffered through the offence.
* They can also describe any loss of, or damage to, property and any other effects of the offence.
* They cannot criticise the offender or the justice system.

What the Sensible Sentencing Trust wants:

* Victims to be able to give their opinion on the sentence length, and argue for it to be increased to reflect any lack of remorse or misrepresentation of the victim during the trial.
* Victims to be able to ask a court to order specific reparation or compensation.
* Victims to be allowed to draw attention to any disgraceful conduct and attitude during the trail by the offender or their family or supporters.

I don’t see anything objectionable in those changes. The Judge will decide on the basis of case law the sentence, but why not allow the family of the victim, or the victim, to at least have their voice heard on desired sentencing. The prosecution doesn’t speak for them always. Of course the Court will be bound be precedent, but what is the harm by giving them a say?

The Herald editorial says:

According to retired Court of Appeal Court judge Justice Ted Thomas, the present trial system is “brutalising and distressing” for complainants in sex cases. For that reason, it is unsurprising that many victims of rape are deterred from coming forward. Ways must be found to reverse that and to act on a Ministry of Women’s Affairs study that concluded only 13 per cent of sexual violation cases reported to police ended in conviction.

I agree. But I also note that already the NZ Herald is using the wrong stat from the MWA study. That 13% includes complaints found to be false, and I am sure the Herald is not wanting to imply that there should be more convictions based on false complaints. The figure the Herald should be citing is that only 20% of “valid” complaints led to a conviction.

A core recommendation would allow an accused’s past sex convictions and the complainant’s past complaints to be disclosed. This would address the considerable public disquiet following the acquittals three years ago of former policemen Brad Shipton, Bob Schollum and Clint Rickards on sex charges in the Louise Nicholas case. After the trial, it was revealed that Shipton and Schollum were already in prison after being found guilty in 2005 of the pack rape of a young woman at Mt Maunganui in 1989 – information that could not be disclosed to the jury previously.

Other taskforce proposals include giving judges the ability to direct juries that they may draw an “adverse inference” if an accused opts to stay silent, and to also direct that “beyond reasonable doubt” does not mean “no doubt” the accused is guilty.

In essence three major changes are proposed

1. Allowing details of previous convictions
2. Allowing a jury to draw an adverse inference from an accused staying silent, and presumably not testifying
3. Stressing that reasonable doubt does not mean no doubt

There are reasonable arguments for and against such changes. My position though is that any such changes must apply to all criminal cases, not just sex cases. Why would you give more (or less) rights to those accused of murder, kidnapping, grievous assault, armed robbery etc etc.

It would be seriously unjust that if someone is accused of killing someone they have the right to remain silent, but if they are accused of rape, they lose the right to remain silent (without adverse inferences).

Also why would you have a system which allowed a jury to know someone accused of rape had a previous rape conviction, but not that someone accused of armed robbery had previous convictions for armed robbery?

The Dom Post reports:

As a packed courtroom erupted at the news that Alan Gundry would walk free after shooting dead one of his best mates in self-defence, the young Auckland father simply sank in the dock and cradled his head in his hands. …

After deliberating for eight hours, a jury unanimously found Mr Gundry not guilty of murder and, by a majority of 11-1, not guilty of manslaughter. His lawyer, Graeme Newell, said there would be no celebration at the rare verdict – just relief.

Is that the first 11-1 verdict? Vindicates the law change I think as no way he would have been found guilty but it avoids a retrial.

Mr Gundry and Mr Atkins were friends for years and had spent January 12 eating and drinking at Mr Gundry’s home.

But during the evening Mr Atkins became upset with his girlfriend. They went home and he threw her belongings out of his house. She then fled to Mr Gundry’s house, and Mr Atkins followed.

Mr Atkins had a violent history, including several assaults on his girlfriend and a road-rage incident, the court was told. When he died, he was awaiting trial charged with slashing a man’s face at an Auckland nightclub.

On the night of the killing, he rampaged through Mr Gundry’s home, attacking five others, leaving another party-goer semi-conscious in a pool of blood and assaulting Mr Gundry’s partner, Nicole MacDonald.

It was right to bring it to trial, but the verdict is absolutely the right one, from the media reports.

The Herald reports:

The Labour Party, which has prevaricated and criticised the boy-racer legislation, will support both bills and the other four law and order bills as well.

The big test will be what Labour does when the three strikes law is reported back. Of course it will depend on details, but supporting that may be too much for some of their MPs.

Crime Stoppers was launched yesterday.

You can use it to report crime through their website or by calling 0800 555 111. They don’t record the call, want your name or details – just information on the crime and who is responsible.

The organisation is an independent charity, based on the UK one set up by Lord Ashcroft, who has also donated to the NZ one.

In the last year, the UK crime stoppers achieved:

• 91,649 arrests and charges from 1,060,047 actionable calls
• 106 million pounds of goods recovered
• 167 million pounds fo drugs seized
• One person every four days charged with murder as a result of information provided
• Contributes to solving of one in five murders in London

Now the UK has 15 times our population, but that still suggests it should prove a useful contributor to the fight against crime.

I’ve finally discovered something useful done by the Ministry of Women’s Affairs. They have published a study into why so few sexual assault complaints result in convictions, and it is full of interesting stats. The study is of 1,955 police files relating to sexual assaults upon an adult from July 2005 to Dec 2007.

68% of the files involved rape, 22% unlawful sexual connection, 7% attempted sexual violation and 3% other.

So one third of complaints are not about a valid offence. We learn that 8% were classified as false complaints, so presumably the other 26% were complaints that were not deemed to involve illegal behaviour.

Of the remaining 66% of valid offences, one sixth did not have a suspect identified which brings it down to 55%. A surprisingly high 44% of cases with an identified suspect are not prosecuted meaning 31% of all complaints result in prosecution. And of those 42% resulted in a conviction.

This means overall only 13% of complaints lead to a conviction. However the more useful figure is that 20% of “valid” complaints lead to a conviction.

So let us first look at cases not deemed valid.

‘False complaints’ were defined as cases in which the complainant was charged or warned for making a false complaint. In ‘false complaint’ cases for which further information was noted in the summary data set, the two most common file notes were that the complainant had admitted the allegation was false and that the evidence did not support the complaint. The victim had an intellectual disability or a psychiatric condition or had made previous allegations in around a third of cases.

If 8% of 1,955 cases were “false” that is 156 cases.

So what about the other cases deemed not valid:

The ‘no offence’ category accounted for 34 percent of recorded cases (including the 8 percent designated ‘false complaints’), which was lower than the 45 percent ‘no offence’ rate found in a 1981 New Zealand study (Stace, 1983).

So the category has dropped in frequency.

At least one in five cases did not proceed due to victim withdrawal. That is, the investigating officer recorded that the victim did not want to proceed with the investigation or was uncooperative or could not be contacted. Withdrawn cases were more likely than other cases to involve an offender who was an ex-partner or boyfriend. The police files noted a variety of reasons for a victim not wanting to proceed, including that the victim wanted the offender warned or trespassed but not prosecuted; someone else reported the incident or the victim was pressured to report; the victim had limited recall of the incident; the victim wanted to report the incident or seek advice but take no further action; or the victim did not feel able to proceed, was not ready to proceed or felt threatened.

It is a shame so many victims withdraw, but I can understand why. Now why do one sixth of valid cases not have an identified suspect?

The most common factors in cases with no identified suspect were that the victim withdrew from the process, there was insufficient evidence to identify a suspect who was a stranger to the victim, or the victim had limited recall due to intoxication.

So why were there no charges in 44% of cases with an identified suspect?

The prosecution rate (percentage of cases with charges laid) was 31 percent based on all recorded cases or 46 percent if ‘no offence’ cases were excluded from the base. The prosecution rate for cases involving multiple offences was much higher than for single-offence cases and thus the prosecution rate based on recorded offences (49 percent) was higher than the prosecution rate for cases (31 percent).

Cases in which a known suspect was not charged tended to involve either victim withdrawal or insufficient and/or conflicting evidence.

What is interesting is that victim withdrawal is a common factor at almost every stage. It is a major factor in cases not being deemed valid, in no suspect being identified and in no prosecution being undertaken.

I wonder what the attrition rate at each stage would be, if there was no victim withdrawal? That would be a useful piece of data.

It seems clear that the most significant way to increase the prosecution rate of sexual assaults, would be to have fewer victims withdraw. But that is easier said that done. Many victims can have very valid reasons for not wanting the trauma of a court case.

Some interesting other factors:

• Rape cases had higher attrition rates at almost every stage of the justice process, compared with other offences.
• The 18 percent of cases that involved more than one offence were much more likely to proceed through all stages and result in a conviction than cases involving a single offence.
• The majority of offenders were previously known to the victim, with stranger assaults accounting for just 16 percent of cases and offenders just met (within the last 24 hours) accounting for a further 15 percent of cases.
• A third of cases involved victims and offenders with intimate relationships
• Attacks by a stranger were more often associated with ‘false complaints’
• However, if prosecuted, stranger attacks were much more likely to result in a conviction, giving these cases a relatively high overall conviction rate. (this is logical, as it is harder for the defendant to claim consent if they were strangers)
• Current partners and boyfriends had a high prosecution rate but a very low conviction rate for sexual violation (also no surprise as issues of consent much harder to determine)
• Offenders who were family members had high prosecution and conviction rates relative to other offenders (and again this is logical as few family members ever have consensual sex)
• Cases were more likely to be classified as ‘no offence’ if the victim was uncertain whether violation had occurred. The victim was uncertain in about one in seven cases, and this factor was strongly linked to alcohol or other drug use. (that is a disturbing stat)

They also list factors that do not affect attrition:

• Region (except Akl City has lower level of no offence cases)
• Victim Gender
• Victim Ethnicity
• Victim Origin
• Victim Criminal History
• Victim is a sex worker
• Offender Gender
• Offender Age
• Offender Ethnicity
• Offender Origin
• Incident Timing

This is actually very pleasing. It would be a concern if the demographics of either the victim or offender caused a lower or higher attrition rate in terms of prosecution or conviction.

Also some interesting stats on the 31% of cases that had charges laid:

• 16% plead guilty
• 30% had the case withdrawn or discharged
• 52% went to trial
• Of those that went to trial 50.5% were acquitted and 49.5% found guilty

This is a really invaluable report, full of data. It has certainly given me a much better understanding of how the justice system deals with sexual assault complaints, and should be very useful for policy makers as they seek to improve the system.

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:

Mr Hart wants the introduction of a US system of plea bargaining between prosecution and defence before approval by a judge. “It deals with the root problem we’ve got: there are too many cases going to trial. A lot of them could be resolved.”

I’m sure one of many defence lawyer readers will comment in more detail on this. I understand there already is some sort of informal plea bargain system? How would the proposal by Barry Hart be different? As a matter of principle I ave no problem with plea bargains that reduce court time.

He believes police should be removed from laying charges and instead a Crown prosecution agency should be appointed.

Well Crown Law get involved in the major cases. Not sure how cost effective it would be to have every potential charge referred to a Crown agency.

Both lawyers also said the district court procedure in which judges gave a “sentencing indication” for minor offences should be adopted in the High Court.

Often defendants just wanted to know what sentence they were likely to get. If that could be sorted out early on, they could accept it and plead guilty earlier, Mr Hart said.

Seems sensible.

The SST has a further story on the murder of An An Liu by Nai Yin Xue. Their reporting has unearthed that the murder was predicted and preventable:

Police told a family violence court they feared martial arts expert Nai Yin Xue would track down and kill his wife if he was released on bail, a year before he did just that.

And Judge Phil Recordon noted that An An Liu had told support people she was worried Xue would “find her and hurt her if given bail and… leave the country”.

And he did.

Judge Johnson has defended Recordon and the family violence courts, writing to the Star-Times “we have good reason to believe that an overuse of imprisonment will stop families seeking the help of the police and the authorities”.

And an under-use of imprisonment leads to preventable homicides.

The Herald reports Simon Power has clarified:

Mr Power gave further details of his proposal yesterday, saying it was aimed at cases where the complainant’s relationship with the accused was raised. This would only happen if the judge gave prior permission.

I said yesterday I supported restrictions on questions about the complainant’s previous sexual relationships.

However I have to say I think it would be pretty dangerous to ban any evidence or questions about the actual history and relationship of the complainant and accused. This seems to me incredibly relevant – especially when a trial has consent as the only disputed fact.

Considering there are a significant number of false complaints made, this could lead to more innocent people going to jail. And I am reminded of the maxim better 100 guilty people go free, than one innocent person is jailed.

In response to the suggestion by Chief Justice Elias that the Government reduce prison populations through a mass early release amnesty, Simon Power gave an excellent response:

Justice Minister Simon Power said inmates would not get amnesties.

He also made a pointed remark about the role of the judiciary versus Parliament.

“This is not government policy. The Government was elected to set sentencing policy, judges are appointed to apply it.”

Indeed that is how it works. And it is not as if any prisoners server their full sentences anyway. Almost everyone gets out at two thirds of their sentence, and some even get out at one third. They already have lots out on early release.

The Herald reports:

Justice will be administered through video links under a Government proposal that would revolutionise the court system and save millions of dollars a year.

Criminals could be sentenced over a video link with the jail, rather than by being brought to the dock, and judges would preside over cases remotely instead of from the bench.

The “virtual courtrooms” could eventually fulfil the principle of open justice by allowing the public to watch over the internet.

I think it would be great if people could watch trials over the Internet.

“Middle-range” estimates calculated it would cost $22 million to install and run the technology in 52 places over four years.

Over that time, it would save $43.1 million.

Mr Power said the use of video links would be part of a new criminal procedure bill intended to be made public by the end of the year and in force by the end of 2010.

Official advice prepared for Mr Power says video links will reduce delays and benefit all court-users who have to travel to be there – victims, witnesses, defendants, judges, lawyers and parties in civil disputes.

The official advice says an example of cost savings would be the $22.3 million a year spent on transporting prisoners under the current requirement that they be in court every time something happens involving their case, even if it is a routine procedural matter.

There is a limit to what you do by video link. I don’t think you want Judges running a trial from the bedroom via video link for example! But certainly not having to transport prisoners backwards and forwards for routine hearings is something that should be done as a minimum.

Saving money is good. But even better is reducing delays in justice which benefits everyone.

The Press reports:

Tough new laws allowing boy racers’ cars to be seized and even crushed for “cruising” city streets are likely to be in force by the end of the year.

Police Minister Judith Collins warned that “every new offence (for street racing) will bring them closer to the crusher”.

Judith got her law!

Yesterday, police welcomed the Government’s move to target illegal street racing, saying two bills introduced to Parliament yesterday would make a “significant difference”.

Under the proposals, authorities will have more power to seize and, as a last resort, crush the cars of boy racers on their third street-racing offence within four years.

Doubt it will result in many cars being crushed but it may have a deterrent value – especially after a second offence.

About 100 crashes a year are attributed to illegal street racing, and the Government says the activity is responsible for an average 10 deaths per year.

Another 46 people are seriously injured by street racing, with a further 125 minor injuries. The social cost of the crashes is estimated at $30 million a year.

That is more than a minor nuisance.

Meet Anthony Alfred Afu. His record:

1. at age 14, killed John Wahanui in 1994
2. assaulted a female in 2002
3. assaulted a female in 2006
4. knocked out two of his partner’s teeth and beat her 3-year-old son so badly he was hospitalised in Oct 2007
5. punched his five month pregnant partner in the stomach in Dec 2007. The baby was dead four days later

Two dead, and several women in hospital. He is eligible for parole in just four years.

Simon Power said some very interesting things on Q&A this morning. His whole interview was excellent – other Ministers/MPs should take notes. Extracts:

SIMON: Essentially what I’m interested in is having a broad discussion about three things initially. The first is the way our jury system works. Presently under the bill of rights if you’re charged with an offence that carries a term of imprisonment of three months or more you can elect to go to a jury trial, I’m very keen to see that threshold raised.

GUYON To what?

SIMON Oh well I think three years would be appropriate. You would see a savings on jury trials about a thousand a year along with a couple of other smaller changes we could make in that area.

So someone charged with a crime that has a maximum sentence of between three months and three years, would see their trials be judge only. I’d be interested to see where the line is drawn in other OECD countries. Power mentioned five years is the threshold in Canada.

The crimes that would now be judge only, from a quick skim of the Crimes Act are:

• Wrongful communication, retention, or copying of official information
• Unlawful assembly
• Riot
• Forcible entry and detainer
• Contravention of statute
• False statements or declarations
• Use of purported affidavit or declaration
• Failure of duty that permits person in lawful custody to escape
• Blasphemous libel
• Distribution or exhibition of indecent matter
• Indecent act in public place
• Indecent act with intent to insult or offend
• Indecent act on a dependent family member under age of 18
• Indecency with animal
• Criminal nuisance
• Misconduct in respect of human remains
• Infanticide
• Concealing dead body of child
• Injuring by unlawful act
• Aggravated assault
• Assault with intent to injure
• Assault on a child, or by a male on a female
• Common assault
• Poisoning with intent to cause inconvenience or annoyance
• Leaving a trap in place
• Possession of offensive weapons or disabling substances
• Feigned marriage or feigned civil union
• Intercepts any private communication by means of an interception device
• Theft of between $500 and $1000
• Being disguised or in possession of instrument for burglary

And a few more.

GUYON I’ll come to that in a second, but is part of the factor here that you’re struggling to get jurors to actually sit on those trials?

SIMON No that wasn’t part of the thinking, what was driving the issue was the delays that we’ve been seeing in our justice system, in the District Court for example, on average it takes about 12 months before a trial kicks off, in the High Court it’s about sixteen and a half months over the 2008 year. We have to address this, this is not without controversy I accept that, but the fact is our criminal justice system has not been delivering justice served seen to be done in a timely and helpful fashion. Victims of crime find this process incredibly difficult.

And the delays are especially hard on the victims.

SIMON Well I’ll leave that up to you to decide, but the other two areas that I’m looking particularly closely at is this ability where somebody doesn’t appear at a hearing the only sanction available to the courts in general at the moment is to schedule another hearing. There are some provisions under the Summary Offences Act that allow convictions to be entered for non appearance at trials. I think we need that souped up. I think we need to have a situation where the presumption shifts – if you don’t show up, unless of course the circumstances would be manifestly unjust for good reason – if you’re not showing up to a hearing to have your time in court, the court should be able to enter that conviction. Now that’s different to sentencing where the accused would have to be present.

Power clarified that this does not mean you can be found guilty if you never appear to make a plea. But if you have actually entered a please of guilty, and then don’t turn up – that the court can enter the conviction.

SIMON Yes we are, which leads me neatly into the third issue which is that I think it’s time that the courts were able to hold lawyers, both prosecution and defence to account, for not moving through hearings in a timely and appropriate way. I just think we’re at the point now where the gaming of the system around the criminal justice processes has to be front footed.

GUYON Is that what court lawyers are doing?

SIMON Oh look I believe what we’re seeing is the system being badly incentivised particularly around legal aid, to encourage multiple appearances on issues that should be dealt with in a short and timely way at first appearance.

And again the real losers are the victims.

SIMON Well the courts presently have available to them a mechanism to be able to fine a lawyer for gross negligence in the sense of bringing that case. My view is that should be more readily available to the courts, and if you’re a legal aid lawyer, you should have your eligibility to do legal aid cases tested if you’re not proceeding in a timely way. To simply not be ready, to not be available, and to not show up, are not good reasons. Look when I was admitted to the bar, many years ago in 1994, in my short time as a lawyer I was always told that a lawyer’s first duty, his first obligation is to the court, and we have not seen that in the way that our criminal justice system has operated, it’s time for some change.

That is quite neat. If you drag out trials for years on end on legal aid, then you lose your eligibility. Those accused of crimes have the right to a fair trial. But that is not the right to have the trial delayed for years and years.

LAILA HARRE – Union Leader

Well I think that what we saw today was somebody taking a pretty objective and considered approach to the criminal justice reform, and that’s a good thing because there’s usually far too much emotion vested in this and most of that emotion will be coming from lawyers over the next week, it’s probably a pretty good distraction too from the inevitable continuing fallout of the Rankin debacle I would imagine too.

Some praise from Laila.

PAUL Wow. Exactly so. But of course the notion of juries is a very British thing isn’t it, I mean it’s not written on stone from God that you should have a jury, I mean they operate very well right through Europe with judge panels don’t they?

THERESE ARSENEAU – Political Analyst

Well it goes back to the Magna Carta, so it is quite a rich history of right to be tried by your peers, but we also have a basic right to a quick and speedy trial and in a sense you’ve got two rights perhaps in conflict here, and I agree with Fran that my understanding is that it’s the pre trial battles that eat up so much of the time, so the fact that the Minister is also going to look at what lawyers do before the trial I think is really important too.

And Therese usefully clarifies that it is balancing the rights to a speedy trial, with other rights.

What I like is that Simon has not announced these as firm policy. He has identified three measures he thinks will help victims (and accused) get speedier justice, and said he wants to have discussion about them.

Hopefully Opposition parties won’t rule them out instinctively but look carefully at whether the pros outweigh the cons.

NZPA report:

Ms Lee said she was “feeling great” about the campaign, and had already started door knocking.

“We are in the rain and cold to meet the people in Mt Albert to see what they are concerned about,” she said.

Residents were concerned about the same things the rest of New Zealand was, she said.

She believed law and order was a big issue for people in the area.

“As a victim of a home invasion myself I understand exactly how they feel. I want to feel safe in my own home and on the street.”

Few would disagree, would they?

He said the big issues for the electorate were the Waterview Connection motorway, the “super-city”, which people didn’t understand, and the economy. Mr Shearer said he did not believe crime was such a big issue, but people did want “strong, safe communities.”

So crime not such a big issue. Putting aside the unfortunate timing in such a statement, I doubt few many Aucklanders would agree.

A great story from Tokoroa:

Mr Pearce said the disguised robber entered the shop as it was closing just before 10pm, produced the rifle and demanded cash.

As he was making his threats, one of the staff members who was watching from inside a nearby chiller surprised the robber and attacked him, and a fight between the robber and two staff began.

A brave and risky move, but sometimes you get an opportunity and the risk is worth it.

The fight continued through the back door into a service alley, where the offender was overcome and fell to the ground, and his firearm was taken by one of the staff members.

So far so good.

“The offender has attempted to retrieve his firearm so a shot was discharged by the staff member to scare the offender away,” Mr Pearce said.

A pretty stupid offender. He’s just had his gun taken off him, and been subdued and he thinks they will just give him his gun back. Very sensible of the staffer to fire a warning shot.

“He has continued to advance on the staff member and another shot was discharged.

“The staff member concerned has told police that he believes he has shot the offender in the legs with this second shot, mainly due to the scream the offender let out.”

Yes the scream would be a good indicator.

Mr Pearce said the robber left the scene on foot. A police dog was unable to track the offender more than a few hundred metres from the scene.

The staffers acted totally appropriately. They did not shoot him to stop him escaping – only to stop him taking the gun back off them.

Police did not encourage victims being robbed at gunpoint to fight back as these victims did, he said.

Of course not. No doubt the Police will now charge the staffers. But rest aassured if they do, the jury will throw it out, as they always do.

The Dom Post has more:

Mr Jiang said yesterday that he was not a hero. “I was not scared. I would do it again. I hate these people. I will never give them any money.”

Yay.

The Herald reports that as currently defined, none of the 423 prisoners serving a life sentence would have reached their third strike before the offence that got them a life sentence.

The reason for this is the merger of National’s two strikes policy and ACT’s three strikes policy.

ACT’s original three strikes policy had a large number of violent or sexual offences as qualifying for a strike.

National’s two strikes policy defines a strike more narrowly – you have to have been actually sentenced to a prison term of five or more years for it to count as a strike. So ACT’s third strike of life with 25 years no parole would only occur if someone had on three seperate occassions been given a prison sentence of at least five years.

I doubt National will want to water down the definition of what counts as a strike – you then risk relatively minor offenders getting caught up in it.

My preferred policy remains a modified form of three strikes – using National’s definition of a strike being a sentence of at least five years:

1. Normal sentence, normal parole (at 2/3rds)
2. Normal sentence, no parole
3. Maximum sentence for offence, no parole