Guest Post: Three strikes about to bite hard

October 9th, 2014 at 7:00 am by David Farrar

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.

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Another candidate for three strikes

September 25th, 2014 at 4:00 pm by David Farrar

The Herald reports:

The demolition worker who choked a Dunedin man to death in a bar toilet was a “parasite” who showed no remorse in court yesterday, a grieving uncle says.

Stephen Anthony Fernyhough, 26, snapped at the victim’s supporters as he was sentenced in the High Court at Dunedin to five years in prison for the manslaughter of Ryan Court, 35, in the Craft Bar on April 27.

Details of Mr Court’s death prompted gasps and several outbursts from a packed and tense public gallery, with Fernyhough, flanked by two guards, responding “f…wits”.

“Shut up, you weren’t there.”

Earlier, the court heard how Fernyhough, who had 76 previous convictions over a nine-year period, used a choker hold on Mr Court for between 20 and 40 seconds, following a disagreement in the men’s toilet.

“Don’t mess with the wee man,” Fernyhough said as he left the unconscious man and fled the scene with his associates.

If three strikes was in earlier, and two of his 76 previous convictions were strike offences, he’d be in for 20 years, not potentially out in two years

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SST analysis of three strikes

August 29th, 2014 at 12:00 pm by David Farrar

The Sensible Sentencing Trust has done an analysis of the three strikes legislation (which may be gone if the Government changes). As at the end of 2013, the stas are:

  • 1st strikes 3,721
  • 2nd strikes 29
  • 3rd strikes 0

It’s great to see so few second strikes, and that so far there have been no third strikes.

They have a profile of the 24 2nd strikers:

  • 100% have numerous prior convictions as adults. And these are not for minor offences. They include burglary, male assaults female, possession of offensive weapons, robbery, aggravated robbery, indecent assault, theft and many others.
  • 46% have prior convictions for ‘strike’ offences before Three Strikes taking effect on 1 June 2010. Because Three Strikes was not implemented ‘retrospectively’ these prior offences do not count as ‘strikes’ against their record.
  • The average age of second strikers is just under 26 years, and all but one are men. The youngest second striker is 19 years old, and the oldest 45 years old, at the time of second strike sentence.
  • 67% received a sentence of imprisonment for their first strike offence/s. Of those imprisoned, the average term was 14% of the maximum available. The average term imposed was 20 months.
  • 38% of first strikers committed their first strike offence while on bail, parole or while still subject to sentence.
  • 67% of second strikers committed their second strike offence while on bail, parole or while still subject to sentence.
  • 92% received a sentence of imprisonment for their second strike offence/s. Of those imprisoned for their second strike offence/s, the average term was 24% of the maximum available. The average term imposed was 35 months. The term imposed is served without parole or early release under the three strikes law.
  • 67% committed their second strike offence while on bail, parole or while still subject to sentence.

The fact that 38% of second strikers committed their first strike whole on bail or parole is telling.

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Strike Two

July 8th, 2014 at 10:00 am by David Farrar

Stuff reports:

A Hastings man who sexually assaulted an 87-year-old woman in her home was on parole at the time.

Name suppression on Hugh Hemi Tuatua Tareha, 30, was lifted yesterday after he admitted the attack on November 7 last year.

It can now be revealed that he attacked another woman on the same day – and that he was on parole at the time for the robbery of an elderly woman.

Tareha had been before the Parole Board just the day before and had led the board to believe he was motivated to make changes.

“We are pleased with his performance,” the board wrote in its report on November 6.

Well they got that one wrong.

Yesterday, Justice Simon France entered the convictions and noted that Tareha would receive a second strike under the three strikes legislation at sentencing in September. He ordered a cultural report and two health reports, as the Crown was seeking preventive detention. Tareha was remanded in custody.

This is excellent. No parole for him next time, and if he offends again, then he will receive the maximum sentence for his crimes.

Make sure you vote to retain the three strikes law at the election.


ACT proposes three strikes for burglaries

April 21st, 2014 at 7:50 pm by David Farrar

The Herald reports:

More than 2000 families will return home this Easter weekend to find they have been burgled, and Act says it is the only NZ political party to offer a serious solution.

Party leader Jamie Whyte outlined its policy on the crime today, confirming that burglars will spend three years in prison if convicted of the crime for a third time under its policy.

Three years for a third strike sounds about right.

The maximum sentence for burglary is ten years imprisonment. The three strikes for burglary policy would send all burglars to prison for at least three years without parole if convicted of the offence three times, whether it be in one burglary spree or over many years.

The idea is that burglars stop burgling. With only 2% of burglaries resulting in imprisonment, then the risk of getting caught and convicted doesn’t outweigh the benefits of being a burglar.

Mr Whyte said burglars convicted of one or two charges of burglary will not see any change to their sentence, except that a judge would warn the offender of the serious penalty of another offence.

That’s a key thing. After the second strike they need to be aware that a third strike will result in a significant jail term.

Mr Whyte said currently about 4000 New Zealanders are sitting on a first strike, 32 on a second strike and no one has been convicted of a third strike offence under the three strikes for violent crimes policy.

That’s a great success. We don’t want people getting a third strike.

The policy is modelled on a three strikes for burglary law introduced in England and Wales in 1999. Burglary in England has since dropped by 35 per cent since the introduction of the three strikes. After a third conviction for burglary offenders in England are imprisoned for three years with parole.

So this is a policy introduced by the UK Labour Party. If National wins re-election I am optimistic they would agree to support this policy, if ACT make it a key policy for their support. NZ Labour will oppose it I suspect – as they also opposed the three strikes law for serious violent and sexual offending.

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Maybe three strikes for burglaries isn’t a bad idea

March 6th, 2014 at 12:00 pm by David Farrar

A reader sent me a link to this 2012 story:

One of New Zealand’s most prolific burglars – with 388 convictions to his name – has been sent back to jail, but is hopeful he can change his ways.

Allan Tremain Adams, 41, added two more burglaries to his bulging list on April 17 when he broke into Autocraft in Tremaine Ave, Palmerston North.

He got away with nothing after activating the alarm but then broke into the Willard Rest Home in Russell St and stole $1200 of petty cash.

Blood stains found at the two premises led police to Adams, who was released from his previous prison sentence late last year.

In Palmerston District Court yesterday, he was sent back for two years and nine months on two charges of burglary and one of breaching parole.

Adams has 439 convictions in total and began offending when he was 12 years old and committed arson.

439 convictions and a sentence of under three years!


Three strikes for burglaries

March 2nd, 2014 at 12:00 pm by David Farrar

Audrey Young reports:

Burglars will be sent to prison for a minimum of three years without parole on the third burglary conviction under new policy announced today by Act leader Jamie Whyte.

A lot of people may be surprised to know that a very similar policy is the law of the land in the United Kingdom, and was passed by a Labour Government.

Under the UK law an adult burglar convicted of their third burglary must be given a sentence of at least three years in prison unless the court considered there to be “exceptional circumstances”. I’m unsure if the UK law is also without parole, but that appears to be the only possible difference.

So this proposal isn’t some far right extremist policy. It is a law put in place by a left-wing Government in the UK – just one that was hard line on law and order.

It is unclear how many people would be affected in New Zealand by such a law, and what the cost would be. ACT deserve some criticism for not having any estimates at all about impact and cost, but the UK experience suggests it may not be that great.

In 2012 there were 2,693 convictions for burglary (as the primary offence). Around 40% of them or 1,055 received a custodial sentence. That suggests repeat burglars are already mainly getting prison sentences.

How long is the average sentence for burglary, if custodial? A report to 2006 found an average sentence of around 15 months. This is for all custodial sentences for burglary. I imagine it is longer for those on their third conviction.

So there would be some costs associated with this policy, with more burglars in prison and for longer. The potential benefits though are that while in prison, recidivist burglars are not robing people’s homes, and also that the law may discourage recidivist burglars from carrying on.

A report in the Daily Telegraph found that from 2000 to 2008, only 3,018 people had been convicted of a third burglary. The burglary rate halved in the decade to 2010.

So what would be the expected number of third strike burglars in NZ, based on respective populations. They have around 15 times our population so one might expect over an eight year period 200 recidivist burglars to get a third strike. That suggests the costs of such a policy could be relatively modest.

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BSA upholds complaints against Radio NZ over three strikes coverage

November 25th, 2013 at 4:00 pm by David Farrar

David Garrett complained to Radio New Zealand and then the Broadcasting Standards Authority about a Nine to Noon item on 29 May 2013 regarding the three strikes law. The BSA has ruled that the item was both unbalanced and inaccurate. Their ruling is here.

David has provided Kiwiblog with a guest post about the ruling:

“Three Strikes”, Radio New Zealand and the Broadcasting Standards Authority

 On 29 May Radio New Zealand’s “Nine to Noon” featured what was supposedly a panel discussion about how the “three strikes” (3S) law  was working, almost three years after its passing.  The only problem – or at least the  most obvious one – was that the panel consisted only of Professor John  Pratt,  who had voiced his strident views against the law from well before it was passed, and the lawyer for one Elijah Whaanga,  a man with 20 odd convictions as an adult, two of them  “strikes” for aggravated robbery.

 And of course there was the supposedly neutral  presenter, one Lyn Freeman, filling in for Kathryn Ryan, who in all fairness would probably  have done a much better job. As the recently released Broadcasting Standards Authority (BSA) determination on my complaint about the programme makes clear, while nominally presenting the programme – and supposedly acting as devil’s advocate :

“…the presenter appeared to largely adopt the position of the interviewees without any real challenge….[her questions] were insufficient to provide balance on the topic under discussion, especially considering the broadcast involved two people strongly opposed to  the law” (at para. [25])

The programme began with a major  inaccuracy: that persons on their third strike “had no possibility of parole”, when in  fact  the “no parole at strike three” provision  will  not apply if the Judge finds it to be “manifestly unjust” in the circumstances of a particular case. The insertion of this proviso occurred after Judith Collins took over negotiation of the contents of the 3S  law from then Justice Minister Simon Power, and the Nats stopped playing games.

It is an important qualification – and gives the lie to the oft repeated claim that the law removes judicial discretion.  ACT readily agreed to this provisio being included. Radio New Zealand simply ignored its existence in Freeman’s introduction. Things got much worse from that point on.

Throughout the discussion, Elijah Whaanga, the second strike aggravated robber whose lawyer was a panelist, was referred to constantly  as “Elijah” and “a playground bully ”, presumably because his second strike aggravated robbery was of a skateboard and a hat. What wasn’t  mentioned was that the robbery occurred  in the street not a playground; that the victim was “only” robbed of a skateboard and a hat because he had no money; and that in Whaanga’s first strike – also an aggravated robbery in the street – the victim had all his money taken, and his head  kicked in.

As the BSA puts it in its decision:

“The offender on his second strike…was referred to throughout the discussion and  used as an example of the type of people  targeted by the law , without balancing comment to challenge this…Given the participants strongly held views that the law operated in a way that was unjust and unfair, and out of proportion to the crime committed, there was a clear requirement of the broadcaster to ensure the discussion was balanced” [paras. 19 -20]

The BSA concluded that the programme was one to which the “balance” standard applied,  that  RNZ “…did not include sufficient balance on the issue”, and therefore upheld the  first limb of  my complaint.


My second complaint was about the many inaccuracies the programme contained, none of them corrected or challenged by the presenter.  I identified a lengthy list of statements – mostly by Professor Pratt  – (see para. [37] of the determination)  which were inaccurate or misleading.

The BSA found that the programme was misleading in two crucial respects: firstly by its  many completely inaccurate comparisions with California’s “three strikes” law; the second  was the way “playground bully” Elijah Whaanga was “portrayed and used as an example of the type of criminals (sic.)  targeted by the law “ (See para. [43] of the BSA decision).

The first  point  is of course indeed  crucial. From the outset, opponents of 3S have attempted to use the indisputable   excesses of the law in California as it was originally enacted   as a reason not to enact  a law with the same name here.

In 2007, Garth McVicar and I went to California specifically to find out whether the “life for stealing a chocolate bar” stories were true (we never verified  that one, although there were others which were clearly unacceptable and unjust) and if so, to work out how to draft our  3S law so  injustices like them  couldn’t happen here.

California recently modified its law to make it much more like ours: no more “technical felonies”, and much more prosecutorial and  judicial discretion. Rather than make those points, Freeman talked about California “backing away” from 3S, and rhetorically asked “What does that tell you? ” Professor Pratt obliging leapt on his soapbox and gave his version of what the changes in California meant, untroubled by any dissenting voice.

The BSA was perhaps  harshest on this point, saying:

“…comparing the legislation in this manner, without any countering views, and in particular the presenter’s unequivocal statement that California had started to ‘back away’  from the legislation, would have misled listeners as to the nature of New Zealand’s ‘three strikes’ law  and any comparison with California.” (see para. [42] )

The BSA concluded its decision on the balance and accuracy complaints thus:

“The programme omitted any alternative voice to counteract the one sided statements  made by the panelists, and the presenter failed to adequately challenge those statements. Compounding this, the panelists also made statements which created a misleading impression in the absence of any balancing comment.” (See para. [49] )

As I did on the morning  I heard this travesty of journalism unfolding, I have offered to  appear as “balance” for any future programme on 3S. Somehow I don’t think I’ll be getting a call, but at least after receiving  a spanking from the BSA like this one, they might be a bit more careful next time.

Well done to David for getting a successful ruling, and hopefully Radio NZ will be more balanced in future on this topic.

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A prime candidate for three strikes

August 17th, 2013 at 8:30 am by David Farrar

The Press reports:

A man whose “appalling” record of violent offending is the worst a judge has seen has jailed for five years and nine months.

Justin James Taia, 40, was sentenced today on a charge of causing grievous bodily harm with intent to injure after being found guilty by a Christchurch District Court jury.

Taia beat up a St Albans neighbour, Vaea Lam, who suffered serious head and brain injuries and had to have part of his skull removed. He lost five teeth.

Crown prosecutor Deidre Orchard said the head injury almost resulted in Lam’s death, and Taia had an alarming history of violence.

Lam was in court, and Taia called out: “Yeah, but I didn’t start this. You should man up, man.”

Full of repentence!

Taia had the most appalling record for violence he had seen, with 16 previous violence convictions.

Sadly he was in court just two years ago.

A man who punched and stomped on his mother, and attacked his wife, both of whom had protection orders against him, was jailed today. 

Justin James Taia, 38, was sentenced at Christchurch District Court after being convicted of assaulting his mother with intent to injure her, assaulting his wife, and two charges of breaching protection orders.

Judge John Strettell said these were Taia’s 12th and 13th assault charges and his sixth and seventh breaches of protection orders. …

He sentenced him to 18 months imprisonment, with release conditions to attend counselling programmes and treatment as recommended by his probation officer.

He came close to killing someone this time. I presume he now has his first strike offence. Its madness that he just goes in and out of jail time after time, and his list of victims grows larger.

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France drops three strikes

July 12th, 2013 at 7:00 am by David Farrar

The BBC reports:

France has halted an anti-piracy policy that threatened persistent offenders with internet bans.

A law passed by the previous government had let local courts suspend copyright infringers’ connectivity for up to a month if they were caught three times.

It was supported by the entertainment industry, but France’s current culture minister had said that she thought the penalty was “disproportionate”.

File-sharers still face fines of up to 1,500 euros ($1,923; £1,292).

The government added that it would now focus its efforts on sites that made money from offering illegally copied content rather than individual users.

Suspension is disproportionate. Good to see France call a halt to it.

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A schoolyard bully

May 30th, 2013 at 1:00 pm by David Farrar

3 News reports:

The ACT Party is challenging a criminologist who says the three strikes sentencing law is unfair.

The law is an ACT initiative and means a violent criminal gets a maximum sentence on a third conviction with no parole – even if they plead guilty.

Victoria University criminologist John Pratt has raised the case of 21-year-old Hastings man Elijah Whaanga, who was handed his second strike last month for two street muggings and jailed for two-and-a-half years.

Mr Pratt told Radio New Zealand Whaanga is “nothing more than a schoolyard bully” and hitting him with three strikes would be unfair punishment.

A schoolyard bully?

This confirms my view of most criminologists, Greg Newbold excepted.

But ACT president John Boscawen, a former MP who took the three strikes law through Parliament, says that’s rubbish.

“The so-called schoolyard bully is in reality a violent young man with over 72 convictions,” he said.

“He is exactly the type of criminal three strikes was intended to target.”

Mr Boscawen says Whaanga’s first strike was for two aggravated robberies, and his second and final warning was for another two aggravated robberies.

72 convictions? Yeah, just a schoolyard bully.


Another case for three strikes

May 20th, 2013 at 11:00 am by David Farrar

The Dom Post reports:

A man with more than 100 convictions – and described as a danger to the public – has escaped being locked up for life after he committed an armed robbery of a Kapiti supermarket.

So how long did he get?

It was the latest in a long list of robberies, and it happened while he was on parole.

However, on Friday a judge accepted that treatment, including medication for depression, might yet reduce the risk that Lawson posed.

Lawson was sentenced to eight years’ jail on charges of aggravated robbery and kidnapping, and has to serve at least four years and nine months before he can be considered for parole.

The fact he was on parole when he did this armed robbery suggests parole is not that great an idea for him. But the good thing is under three strikes, he will not be eligible for parole the next time he does an armed robbery.

Lawson had been out of prison for almost seven weeks when he robbed the Paraparaumu Countdown.

In 2001 he had been sentenced to 10 years’ jail for four robberies. He was said to like expensive and showy items, and after the robberies he bought a Jaguar car and a boat.

Paroled in 2008, his freedom had ended after a “sophisticated” burglary targeting the safe at an Ohakune supermarket in July 2009.

It not only earned him a recall to serve out the rest of his long sentence but also added another 18 months’ jail time.

If three strikes had been implemented earlier he would now be on at least his third strike and away for a much longer time.

The first robbery on Lawson’s list of more than 100 convictions had been for stealing the car that two associates used in an armed holdup of a jewellers in the Wellington suburb of Kelburn in 1994. He pleaded guilty to being a party to the crime and was jailed for 4 years.

He’s been offending with weapons non stop for around 20 years. Call me a pessimist, but I’m not sure he is about to see the error of his ways.

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The left vowing to repeal three strikes

May 1st, 2013 at 11:00 am by David Farrar

Stuff reports:

Labour, the Greens and the Maori Party all say they would repeal or alter the three-strikes legislation after the issuing of a second strike to Hastings man Elijah Whaanga.

Whaanga, 21, was sentenced to two years’ jail and issued with his second strike by Judge Tony Adeane in the Napier District Court on April 18 after pleading guilty to two charges of aggravated robbery.

I understand he has a total of 72 convictions. I look forward to Labour and Greens campaigning up and down New Zealand that he should be given not 3 strikes, but 73.

Whaanga, who now has 20 convictions as an adult, was given his first strike in 2010 for a violent aggravated robbery for which he was jointly charged.

Presumably 52 of his convictions were as a youth. He has raked up a huge number of criminal convictions in a very short time. Hopefully the thought of 14 years prison for another aggravated robbery will mean he stops offending, and he creates no more victims.

But’s let’s say he does continue upon his ways. Well then for the next 14 years there will be no more victims. While prior to three strikes, he’d probably chalk up another 50 or so convictions over the next 14 years.

The Greens would “definitely” seek to repeal the law if they came to power, Mr Clendon said.

No surprise there.

Labour justice spokesman Andrew Little said the party had not committed to repeal the law but believed there were parts that might need to be altered.

Labour’s policy in 2011 was to repeal it, off memory. They voted against it, and I have no doubt they will repeal it unless they give a cast iron assurance not to before the election. However, even if they claim they will just amend it, the nature of MMP means that they may agree to its repeal as part of a coalition agreement with the Greens. Under MMP, you can’t hold parties to their manifestos unless they get a majority in their own right.


Strike Two

April 29th, 2013 at 10:00 am by David Farrar

Stuff reports:

The controversial “three strikes” legislation has seen a young man jailed without parole and warned that if he steals another skateboard, hat or cellphone he will spend 14 years behind bars.

In issuing Elijah Akeem Whaanga, 21, his second strike, Judge Tony Adeane told the Hastings man his two “street muggings” that netted “trophies of minimal value” meant his outlook was now “bleak in the extreme”.

“When you next steal a hat or a cellphone or a jacket or a skateboard you will be sent to the High Court and there you will be sentenced to 14 years’ imprisonment without parole,” Judge Adeane said.

Justice Minister Judith Collins said the case showed the law was working. Sensible Sentencing Trust spokesman Garth McVicar agreed, saying the sentence of two-and-a-half years’ jail with no parole was “fantastic”. 

Victoria University criminology professor John Pratt said the case “highlighted fundamental problems” with the law.

“Was this really the type of offender that the three strikes law was meant to protect us from?”

Whaanga’s offending stretches back to 2006, including burglary, theft, resisting arrest and indecent assault. He served a short prison sentence in early 2010.

Stealing is not a strike offence, but aggravated robbery is. From what I can see Mr Whaanga has had four strike offences so far – but two before the legislation was passed.

If he does not commit any more strike offences, then he won’t get the maximum sentence with no parole.

I’ll freely say that Whaanga doesn’t appear to be the worst criminal out there, but I don’t judge a policy on sole cases. And if he is stupid enough to get a third strike, then the Judge does have discretion to make him eligible for parole if it would be manifestly unjust not to do so. So if he does another aggravated robbery and gets the maximum 14 years, a Judge could still make him eligible for parole after four years and eight months.

By the end of last month there were 2684 offenders on their first strike and 17 on their second strike.

This may be because it is early days, but the very small number of second strikes compared to first strikes *might* mean that the hoped for deterrent effect is working.

In around five to ten years we will get some fascinating data looking at reoffending rates before and after the three strikes law. That is if Labour and Greens do not repeal it before then – as they have promised to do.

UPDATE: Commenters have said that Mr Whaanga has a total of 72 previous convictions, so shorter sentences do not seem to have worked with him.

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Throw the key away

February 13th, 2013 at 11:00 am by David Farrar

Stuff reports:

A man convicted of multiple charges made a rude gesture to a judge after he was sentenced to prison.

Joel Twain McVay, 34, held up his middle finger to the judge, told him he would not follow some of his sentence, and swore at a police officer after his sentencing in the Blenheim District Court yesterday.

A pretty good sign he will not stop offending.

McVay was sentenced on his fourth drink-driving conviction and 19th conviction for driving while disqualified, as well as burning his partner’s belongings and assaulting her.

The Police should wait outside his place and just arrest him as he jumps in a car.

Judge Richard Russell said it was McVay’s 10th assault conviction. He sentenced him to two years and one month in prison after he admitted charges of refusing to give a blood sample, driving while disqualified, assault and wilful damage.

Only 25 months? His 10th assault conviction.

I’m not sure if his type of assault was serious enough to get a strike – but I hope so in the sense that he look to be a prime candidate for getting the maximum sentence with no parole. A lot fewer people will end up assaulted by him that way.

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The three strikes bail issue

October 18th, 2012 at 7:00 am by David Farrar

The 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.

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A move to align California three strikes law with NZ

September 13th, 2012 at 2:27 pm by David Farrar

New America Media reports:

 Supporters of Proposition 36 are optimistic that changing attitudes toward prison reform, coupled with economic considerations, will have Californians voting in favor of tempering their state’s controversial repeat offender law, known as “Three Strikes and You’re Out,” in the upcoming November election.

“Popular support has always been high for reforming Three Strikes,” says Prop. 36 advocate Geri Silva, director and co-founder of the Los Angeles-based Families to Amend California’s Three Strikes. “People realize that sending someone to prison for life for stealing a donut is absurd.” 

Backers of Prop.36 had no trouble gathering the 504,760 signatures required by law to get their measure on the state ballot – about 800,000 people signed the petition — and a recent statewide survey conducted by Pepperdine University’s policy school shows 78.1 percent of likely voters supporting it. …

Proposition 184 imposed a mandatory 25 years to life prison sentence for anyone in the state convicted of a third felony, including non-violent offenses like drug possession and theft. 

Today, twenty-six other states have similar sentencing laws on the books, but California’s Three Strikes law is widely considered one of the most severe.  …

Proposition 36 would amend Three Strikes by imposing a 25 years to life sentence only if the third conviction is for a serious or violent felony.

The mandatory 25 to life sentence would still be invoked, however, for any third felony conviction if the individual also has a previous conviction for murder, rape or child molestation. 

Under Prop.36, those with two strikes would be sentenced to twice the usual time for their third conviction for a non-serious felony, in lieu of the life sentence. Some 3,000 California inmates currently serving a 25 to life term for non-serious or nonviolent third strikes would become eligible to petition judges for re-sentencing, if the measure is approved.

Proposition 36 would bring the California law closer to the NZ one. In NZ you only get a strike for serious violent or sexual offences, and the third strike is only for life without parole if you kill someone. Otherwise it is the maximum sentence without parole.

I think the NZ three strikes law is well balanced, and may become a model. It is a pity Labour wants to repeal it.

Proposition 36 is backed by three DAs, a law professor and a police chief and the California Democratic Party. It is opposed by  the president of the California State Sheriff’s Association,  the president of the California District Attorneys Association, the president of Crime Victims United of California, the president of the California Peace (Police) Officers Association, and the California Republican Party.

The vote is on 6 November 2012.


David Garrett on Three Strikes law

July 30th, 2012 at 3:00 pm by David Farrar

A guest post by David Garrett:

Court of Appeal rejects appeal and confirms “second strike” sentence.

When the “three strikes” law was making its way through parliament a great deal of misinformation was spread about  by those opposing it. Among the more outrageous claims was that the law would result in the prison population tripling within two years, and  that there would be a sharp rise in attacks on police by “strike” offenders desperate to avoid arrest. Two years on, seven offenders have received their second “strike”.  Far from tripling,  the prison population is falling, and there is no evidence of an increase in attacks on police.

Another claim – that the Judges would oppose the law, and find ways to avoid imposing it – has now also proven to be nonsense. The Court of Appeal has just released its decision on an appeal by Brock Robert Norton, who appealed against his conviction and sentence for a “second “strike”. The appeal was rejected, and Norton’s three year sentence for aggravated robbery was confirmed.

Norton – just like the other six second strikers – is just the kind of thug the “three strikes” law was intended to target. While still on parole from his “first strike” sentence, Norton and an accomplice invaded the victim’s home and cornered him in his bedroom, robbing him of a cellphone. The victim was injured in the fracas.  Norton first “strike” offence was very similar to his second – robbery and demanding with menaces.

These two are clearly not his only convictions. In rejecting his appeal, a three Judge bench of the Court of Appeal noted that  with his record, and the seriousness of the offending, a further prison term was inevitable despite his lawyer’s plea for a sentence of supervision. So much for “three strikes” targeting poor lads who had stolen chocolate bars from dairies – another piece of misinformation promulgated  at the time by the likes of Kim Workman.

For lawyers – and their violent criminal clients – this decision is very significant. It puts the lie to the claim that “the Judges all hate it”; we now know that at least one District Court Judge is happy to impose a three year sentence on second strike, knowing the offender will serve the whole sentence, and at least three Court of Appeal Judges are quite comfortable with such a sentence.

The real test will of course come at third strike stage – perhaps Mr Norton will be the first to test whether the Court of Appeal is happy with a 14 year sentence for aggravated robbery. That is what awaits Norton if he fails to take the rehabilitative opportunities offered to him in jail – which the Judges strongly recommended he do – and instead re-offends violently on release in three years time.

It will be interesting to hear the bleating of Kim Workman and his ilk when the inevitable happens, and someone goes away for a record holiday courtesy of Her Majesty and “three strikes”. If the first third striker isn’t Mr Norton, it will be a thug just like him.

I regard it as a good thing that Norton will have to serve his three year sentence without parole – especially as he did his second strike on parole. Hopefully the fact that if he offends again, he will get 14 years without parole will act as an disincentive. If it doesn’t, then he’ll not be doing a fourth strike for at least 14 years!

Always happy to run guest posts, including from Mr Workman.

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Christie’s Law

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

The Herald reported:

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

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

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

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

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

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

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

The 10 changes are:

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

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

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

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

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

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

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Three strikes may have prevented this

April 17th, 2012 at 11:00 am by David Farrar

The Dom Post reports:

Notorious criminal John Gillies allegedly smashed into a man’s house, punched him on the jaw, then threatened to come after him with a bat.

But charges against him were dropped and Gillies was allowed to remain outside prison.

This all happened on parole. The charges were dropped as no witness would testify.

July 1993 – stabs Gisborne police officer Nigel Hendrikse in the neck, chest and thigh, leaving him fighting for his life. Hendrikse is permanently disabled. Gillies sentenced to 12 years prison.

That would have been strike one.

1995 – has two years and nine months added to his sentence for attacking his girlfriend while she visited him at Paremoremo prison.

And that would have been strike two.

May 2004 – arrested after a 3km police car chase at speeds of up to 170kmh in Hawke’s Bay. He assaulted officers, who found cocaine, methamphetamine and $21,040 cash in the car.

And that would be strike three. Maximum sentence with no parole. Instead:

2005 – sentenced to seven years prison.

February 2010 – parole declined after telling the Parole Board he had no intention of attending the Violence Prevention Unit.

May, 2011 – released on parole, a year early.

June 22, 2011 – breaches parole conditions. Comes back before parole board on August 15. Released again from October 14.

February 10, 2012 – charged with burglary, assault, threatening behaviour and breach of parole conditions. Recalled to prison.

April 5 – released under parole conditions after the charges were dropped when witness did not answer their summons. Convicted on charge of breaching his parole conditions, and ordered to come up for sentence if called upon within six months.

Gillies has over 105 previous convictions. Who thinks he will no longer offend?

Remember it is Labour and Green policy to repeal the three strikes law.

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An excellent candidate for three strikes

February 2nd, 2012 at 12:51 pm by David Farrar

Meet Steven Karu.

On July 4 last year, Karu was riding a bus when he performed an indecent act, the Palmerston North District Court heard yesterday.

A 13-year-old girl on the bus saw what was happening and texted her parents, asking what to do. They told her to take a picture to show to the police and to get off at the next stop. She did. Trouble was, Karu got off too. …

On October 13 last year, Karu was jailed for one year on an indecency charge but while in Manawatu Prison awaiting sentence, he sent the girl a threatening letter dated August 22. …

“And on the back ‘original hoodlum pay back’.” There was also a picture of a gang gesture and the phrase “Highbury gonna get you”. The letter to the girl contained threats against her and her family.

In it, Karu described himself as “Highbury’s worst criminal”.

He also commented that he was due to be released when the girl would be aged 16, the legal age of consent for sexual intercourse.

His letter said:

“Delete the photo or else. “I don’t want you, me, and your mum and dad to have a problem. “I didn’t mean for this to happen, I’m sorry. “If my mum dies when I’m in here, so does yours and your dad.”

Sounds a lovely chap. But this is the part that staggered me:

Judge Lynch noted Karu’s long history of offending, dating back to 1989, which included more than 180 convictions.

I might be wrong, but I imagine more than a couple of those offences would be serious enough to qualify for a strike under the three strikes law.

Karu sounds like exactly the sort of offender who should no longer get the benefit of parole and shortened sentences. I think at 180 convictions we can all agree he is not going to stop offending.


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Another example for three strikes

October 24th, 2011 at 3:50 pm by David Farrar

The Dom Post reports:

A Rotorua man who subdued a young girl with fly spray and then raped her has been jailed for 10 years.

Robin Whitiora Chadwick appeared in the High Court at Rotorua this morning on a single charge of sexual violation by rape.

Chadwick, a part time security guard, had forced the 13 year old girl to inhale two cans of fly spray before raping her at a house near Lake Tarawera in 2009. …

Chadwick continued to deny his guilt and showed no remorse towards the victim, the court heard.

Justice John Priestley said Chadwick had a previously been jailed for the rape of two younger girls in Taranaki in 1994.

In this case the girl’s young age, her vulnerability, the use of the fly spray to stupefy the girl, and the isolated location of the offending were aggravating factors in sentencing Chadwick to 10 years imprisonment, with a minimum non parole period of five years, he said.

If three strikes had been in previously, at a minimum his 1994 rape convictions would be a first strike, which means he would not be eligible for parole for this rape. This would put him away for ten years, instead of a minimum five years only. Personally I think having raped three children is enough leniency, and he shouldn’t be getting out to rape anymore.

Bit his offending is even worse than that. The Rotorua Daily Post reveals:

Justice John Priestley said Chadwick, 57, had 24 previous convictions

Now if any of those were strike offences also, then he would be getting 20 years with no parole for this rape.

Now bear in mind that Labour are committed to repealing the three strikes law,which means scum like Chadwick can carry on getting parole time after time after time. A change of Government will have real consequences.

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Labour will repeal three strikes

October 13th, 2011 at 10:00 am by David Farrar

The Herald reports:

A Labour government would be likely to ditch the three-strikes law for repeat offenders, a controversial policy the party vehemently opposes and says is not working.

The three-strikes regime was passed into law last year, making it mandatory for judges to impose harsher sentences on repeat criminals convicted of one of 40 violent or sexual offences.

An offender receives 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.

Well that should make it easier for people. Labour is campaigning to have repeat rapists and bashers spend less time in jail.

Since three strikes was passed, I’ve been noting the number of criminals appearing in court who have a long record of violent or sexual crimes, and reflecting how if three strikes had been in place previously then they would not have been able to commit their latest homicide, rape or bashing.

I suspect this is the last election at which Labour will pledge to abolish three strikes. They can do so, because the public has yet to see it fully implemented. But in a couple of years probably a Judge will send some thug with a massively long list of crimes away for the maximum sentence without parole, and it will be more popular than toast. Once that has happened no political party will dare pledge to abolish it.

So as long as Labour do not get to form Government in 2011, I think three strikes will be safe for good. This is their last chance to repeal it.

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Another case for three strikes

August 13th, 2011 at 8:21 am by David Farrar

Stuff reports:

Convicted killer John Hone Haerewa assaulted two women he had relationships with before he battered Allison McPhee to death.

Before Haerewa’s trial, which ended in a verdict of guilty of murder on Thursday, prosecutors had asked for the jury to hear evidence of his “propensity” for violence against women.

However, a judge in the High Court at Wellington ruled that the two earlier incidents – in March 1994 and January 2006 – did not have enough similarity with the attack on Ms McPhee, 42, to be a kind of “trademark” that would help the jury decide if he was the killer. …

In the two previous incidents he had also targeted the victims’ heads using what was to hand as weapons.

In the first case he broke the plastic handle of a spade on a woman. She was said to have suffered extensive injuries.

The second woman was injured when he slapped her repeatedly and attacked her with a trowel.

This strikes me as the kind of case the three strikes law would be good for. If the two previous convictions counted as strikes, he would now be facing his third strike of life without parole.

And while one can’t be definite, it is possible that if his 2006 conviction was a second strike then he may not have been released from jail by 2010 when he killed McPhee.


A sad reminder why we need three strikes

April 19th, 2011 at 7:33 am by David Farrar

Stuff reports:

In the late 1990s, the Fourth Reich, a Nazi skinhead gang, became a breeding ground for some of New Zealand’s most vicious killers.

Malcolm George Chaston, 41, was right at its heart.

Yesterday in the High Court in Rangiora, Chaston received one of the harshest sentences in New Zealand history, a life sentence with a minimum non-parole period of 20 years for murder, and a sentence of preventive detention for two sexual crimes. For his surviving victims, the sentence will provide some relief. But for Vanessa Pickering’s family it’s far too late.

That is an appropriate sentence. Hopefully he will never be allowed out again.

His offending began 25 years ago and before he murdered Pickering he had 71 convictions, seven of a violent nature. He had used firearms and explosives, attacked prison guards and tried to escape prison.

It is highly likely that if we had three strikes, he would not have amassed 72 convictions, let alone be out of prison to murder Pickering. On the third and an any subsequent strikes he would be getting sentenced to at least seven years with no parole.

In 2002 he got six years for sexual violation. If that had been his third strike, then he would have been locked up for 20 years and not be out until 2022.

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