US vs NZ three strikes law

April 13th, 2011 at 12:00 pm by David Farrar

Stuff reports:

A former California Superior Court judge believes the three-strikes law in New Zealand could turn into a cancer.

Eugene Hyman has just resigned after 18 years presiding over cases in the criminal, civil, probate, family and delinquency divisions of the court.

In 1999, he presided over the first juvenile domestic violence court in the United States.

Mr Hyman, who is in New Zealand to visit friends, said part of the reason he had stepped away from being a judge was frustration at the legal system in California. He had often been forced to send people to jail with no parole for relatively minor offences under the state’s three-strikes law.

Hyman is a well known critic of the US three strikes law. However the NZ law is very different. You can’t get sentenced to jail with no parole for minor offences under the NZ law. A strike only applies to an offence with a maximum sentence of seven or more years.

New Zealand passed its own three-strikes law through Parliament last year. The effects of the legislation would not be felt for several years until offenders reached their third warning, but there was a risk that more and more offences would be added to the list of those that qualified for a strike, he said.

“By Californian standards, yours is pretty lenient, but has the potential to become cancer.

So in fact he is basically saying the NZ law is fine, he just doesn’t want it changed. Fine – neither do I.


Three Strikes is not 25 years

March 12th, 2011 at 10:09 am by David Farrar

The Dom Post reports:

The three-strikes legislation and stripping prisoners of the right to vote breach human rights and could result in New Zealand being hauled before international agencies, a watchdog says. …

The three-strikes law means a 25-year non-parole sentence for the worst criminals after their third serious offence.

No it doesn’t. It means the maximum sentence for the offence without parole. This may be as little as seven years.


Strike Two

March 5th, 2011 at 11:47 am by David Farrar

The Press reports:

New Zealand’s first second-strike violent offender has had his sentencing delayed because of the devastating Christchurch earthquake.

Manahi Ripia, 20, of Wainoni, was meant to have been sentenced in Christchurch District Court yesterday for aggravated robbery and a series of burglaries.

But because of the quake, pre-sentence preparations could not be completed. Yesterday, Judge Gary MacAskill – sitting in Rangiora Courthouse because the Christchurch courts are off limits – remanded him in custody to May 27.

Ripia was on bail after receiving a first-strike warning when he committed a further offence.

That led to him being read New Zealand’s first second-strike warning on January 26, and he was remanded in custody for sentence yesterday.

Mr Ripia seems a slow learner, commiting more crimes while on bail after his first strike. Fortunately we now have a law which won’t allow him to just receive minor sentences for-ever. At this second strike his senetence will be of normal length, but he won’t get parole, meaning he will serve the full term.

And if after release he gets convicted of a third strike for aggravated robbery, then he’s going to be off the streets for many many years.

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Guest Post: Intervention needs to come before the first strike

January 31st, 2011 at 12:00 pm by David Farrar

A guest post from Rex Widerstrom, carrying on the three strikes debate:

Thanks to David Garrett’s “three strikes” law, New Zealand now has a razor-wire enclosure waiting at the bottom of the cliff for anyone who commits three serious offences. The concept is sold as being based on deterrence; not only will the offender on their first or second strike stop and think before offending again but other would-be criminals will not escalate from the minor to the major leagues.

The problem is, deterrence isn’t effective. If it was, then the ultimate deterrent – the death penalty – would see those US states which practice it free of those crimes for which make an offender eligible to be executed. Or at the very least, ensure that the prevalence of those offences was less than in jurisdictions where a lethal injection didn’t await the offender. But statistics tell us it doesn’t.

Anyone who’s spent any time working with offenders – particularly those who commit “nuisance” offences such as vandalism and stealing and those prone to violence – knows that they generally lack a certain capacity to reason. For anyone to claim that such a person stands, spray can or baseball bat in hand, and considers the potential consequences of their offending is either naive, deceived, or lying.

Such a person isn’t considering the effect of their offending on their mother, father, siblings, girl or boyfriend, wife, husband, sometimes children. If they don’t care about the people who should be most precious in their lives only the most deluded theorist would posit that they will care about society’s response, even if that is in the form of a very long prison sentence.

The Three Strikes law will be “successful” in its aim of locking away for lengthy periods those guilty of the worst sort of crimes (it’ll also trap a few who really shouldn’t face such a penalty, though NZ’s law is far better at avoid this than, say, California’s). But implicit in its functioning is the acceptance that at least three – and, in reality, many more – victims will first have to suffer.

We didn’t – we don’t – need that razor wire enclosure beneath a cliff littered with vandalised and stolen property and broken and traumatised victims. We need a cattle race at the top, directing someone who’s shown the propensity to embark on a cycle of offending into a life that offers them an alternative.

While I’m uneasy at the thought of privately run “boot camps” – with their inherent potential for various forms of abuse if the operator is unsuitable – I have no such reservations about the NZ Army’s Limited Service Volunteers program.

The latest group of graduates have described how the program turned their lives around, with one saying:

I was smoking a lot of P, drinking every day and doing heaps of burglaries and hanging out with the wrong people. Getting money to pay for drugs was my life.

“Before I didn’t care about anything, I didn’t listen to anyone, but I was a follower, not a leader…

“[The course] changed my life heaps. I’m a lot more self-motivated, I’ve dumped my old friends and I don’t even put my hands in my pockets any more because I’m not used to it.”

Sound familiar? It does to anyone working in the youth justice field. The young man quoted is described in the article as having been “put on the LSV course by Work and Income as an alternative to a jail sentence”. Presumably – unless the judiciary have abdicated their responsibility – a court was involved at some point.

The LSV program takes young people aged 17 to 25. What’s desperately needed is something for even younger offenders; the current legislatively enshrined inability of the courts to deal “harshly” with child offenders in turn ensures a ready cohort of 17 year old candidates who would benefit from LSV. We have Sea Scouts and Cadet Corps and the ATC – expand them to provide a “junior LSV”, perhaps non-residential, for offenders under 17. And while we’re at it, create an army program for those over 25 as well.

Of course the army approach isn’t the optimum for every offender. We also need to get creative and give our courts more sentencing options like this one, not less as “three strikes” does. I know of one Magistrate in WA who’s not averse to sentencing offenders to Buddhist meditation; and for the few he picks, it actually works.

There are those who work with me in civil rights and criminal justice who’ll be horrified by my advocacy of a spell in the army for many offenders. But I’m tired of debating theoretical perspectives and other people’s prejudices: I’m interested in what works to decrease the number of victims and stops the greatest number of young offenders going on to become what used to be called “old lags”, and LSV does – of the 114 people from the Lower North Island who took part in October, only 29 didn’t successfully complete it (mainly due to injury) and those that did are now all on courses or employed.

While some people already inured to a life of crime will undoubtedly go on causing harm till they reach their third strike, wouldn’t it be great if this election a political party came out with a justice policy that aimed to prevent the creation of new offenders and new victims, rather than futilely boasting how harshly they’ll punish the people on whom they’ve given up?

For my 2c, I support both rehabilitation and early intervention as Rex advocates plus three strikes. We should do whatever we can (within reason) to turn people away from crime. But only some criminals are suspectible to “going straight”, and for those who will not give up on a life of violence, I want the three strikes law in place to stop their victim count from getting even larger.


Guest Post on Three Strikes law

January 22nd, 2011 at 2:44 pm by David Farrar

A guest post by former MP David Garrett on the Three Strikes law:

This week, figures on convictions since the “three strikes” legislation came into force were released. 132 offenders were convicted of 209 “strike” offences. 151 of the convictions were for “pure violence” offences –including aggravated robbery (59), robbery(29), wounding with intent (33) and injuring with intent (20). There were also 58 convictions for indecent assault.

As some commentators at the time have noted – with some justification – indecent assault can cover a fairly broad continuum from the “drunken grope” to near rape. In my view the relative seriousness of various forms of indecent assault is a red herring – or at least a separate debate. None of the other “strike” convictions thus far can be described as “minor offences”, although others will no doubt argue otherwise.

These early results are entirely to be expected. At the time the Bill was being debated, there was all manner of ill informed – and downright dishonest – claims that “three strikes” would see people locked up for minor offences including theft. It seemed not to matter how often it was explained that the Bill was carefully drafted to target only repeat violent offenders – the misinformation campaign went on.

All of the convictions since June 2010 were first strikes, meaning the offenders who were actually sent to prison are still eligible for parole as before. The only thing that changed was those offenders now have a first warning on their file – which will have real consequences when they appear again for a violent offence – and most of them will.

A registrar of my acquaintance runs a District Court in a provinical area. She has paid particular attention to the “strike” offenders appearing for sentence in that court. She tells me that almost without exception, they are familiar faces, having appeared before – some on many occasions – often for violent offending.

She also tells me that most of those sentenced appear to pay little attention to the warning, although if their lawyers are doing their jobs, the offenders will have been told that as a result of it, a further conviction for a strike offence will have a significantly different outcome. Next time, any custodial sentence will have to be served without parole, and even in our ridiculously liberal justice system, a second conviction for a strike offence will almost certainly result in a prison sentence.

The debate about whether three strikes “works” will continue regardless of the results. I have no doubt that even if in three years time violent crime has dropped significantly, the liberal left will refuse to believe that a more punitive approach has anything to do with it. Sadly the left are like that.

The late Dr Dennis Dutton told me a few years ago of his great amusement at the disquiet in American liberal academia when homicides in New York City plummeted in the early 1990’s. Those in the ivory towers embarked upon a feverish search for “the real reason” homicide had declined from about 2500 in 1990 to about 450 per year at the end of the decade. They simply could not accept that something as “simplisitic” as more police on the street with a different attitude, and sentence enhancement measures similar to a “three strikes” approach could have been the reason.

New Yorker’s didn’t care what the reason was, they were just happy to be able to take their kids to Times Square on a Sunday afternoon without being hassled by drug dealers or robbed. Most New Zealanders will be similarly happy that 132 violent offenders now have their first strike, and that within a few years a good proportion of them will be locked up for a long time.

Like David, I’m looking forward to the legislation leading to some repeat violent offenders getting locked up for a long time, so they can’t continue to offend.

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A classic case for the three strikes law

November 2nd, 2010 at 8:57 am by David Farrar

The Herald reports:

The man who murdered Good Samaritan Austin Hemmings in central Auckland spent eight years in an Australian jail for stabbing and killing his estranged girlfriend.

He was also jailed in New Zealand on three separate occasions for knife incidents dating back to 1987.

Under three strikes, his last conviction would have been for the maximum sentence without parole. This happened in 2004, so he would not have been out in 2008 to kill Austin Hemmings.

Instead in 2004 he only got sentenced to two years and four months, despite this being the third time he has actually stabbed someone with a knife. I tend to think stabbing someone with a knife should get attempted murder unless there are strong reasons against.

Sadly Brown may get released again on parole (and I’d love to know if he got parole for his earlier crimes). Under three strikes he would now be facing life without parole which is entirely appropriate for someone who has killed two people, and taken part in a total of five knife attacks. He is is way beyond rehabilitation, and it is a tragedy Austin Hemmings paid the price.


Why the three strikes law is needed

September 29th, 2010 at 11:00 am by David Farrar

The Dom Post reports:

The career criminal who killed Kapiti man Raymond Piper has 175 prior convictions, including for serious violent offences. …

Last year Anderson was convicted of wounding with intent to cause grievous bodily harm. …

Anderson has 175 previous convictions since 1977, many for serious assaults and for threatening to kill, assaulting police, dishonesty and drug convictions.

I’m pretty sure at least three of those 175 convictions would be for serious offences which now carry a strike. If after his third serious offence, Piper had been sent away, I dare say there would be scores less victims and Raymond Piper would probably be alive.


Strike One

June 30th, 2010 at 12:00 pm by David Farrar

The Dom Post reports:

An Upper Hutt man has been served with New Zealand’s first warning under the controversial “three strikes” law after being convicted of groping a woman.

Dwyane Christopher Mercer, 32, was convicted in Upper Hutt District Court last week after pleading guilty to indecently assaulting his friend’s partner. Indecent assault is one of 40 serious violent offences that attract “strikes” upon conviction. The law came into force on June 1. …

Mercer, a landscape gardener, assaulted his victim after being offered a bed for the night after drinking, the court was told.

His partner of seven years, Vanisha Mercer, 25, supported him in court and was unhappy with the “strike”. His three-year-old daughter and son, 6, were missing their father, who was in prison for the first time, she said. “I think it’s unfair … He was just drunk.”

The new law was a good idea “for really bad people … But he’s not a bad person,” she said.

Actually if Mercer is not a bad person, then the law will work on him. He will not want to get a second strike, knowing it will mean no parole. Some criminals will not be deterred from reoffending, but it sounds like Mercer can be.

“I reckon that if he had known the law had changed he wouldn’t have [pleaded] guilty, because then he would have got his bail.”

The three strikes law doesn’t affect bail.

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Editorials 31 May 2010

May 31st, 2010 at 11:00 am by David Farrar

The Herald talks All Blacks:

Yesterday’s announcement of the first All Black team of the season, who will play Ireland at New Plymouth, was the subject of even more fascination than usual. …

Henry had already hinted there would be new faces in the squad. Duly, as a matter of necessity rather than of wish, some with high potential as stars of the future were named.

Of the four, Victor Vito, Israel Dagg and Aaron Cruden are players of excitement and skill – potential matchwinners.

The fourth, Benson Stanley, is unfairly painted as a player whose turn has come only through injuries to others. Yet he is a poised, thinking midfielder with a thunderous tackle and highly rated by those in teams he plays in and often leads.

We’ll find out before too long.

Also on rugby, The Press says Haden must go:

The decision by the Rugby World Cup Minister, Murray McCully, to allow former All Black Andy Haden to continue as an ambassador for the 2011 Rugby World Cup, is a serious blunder.

Announcing yesterday that Haden would be keeping his role, McCully wildly missed the point about Haden’s misconduct and tried to suggest that because of some tepid expressions of regret by Haden about the language he used the matter should now be considered closed.

That is very far from the case. Haden has caused deep offence with a false and damaging accusation. He has not atoned for it, or even come close to apologising. Unless and until he does, he is not fit to remain as an ambassador for the Rugby World Cup programme.

Haden is one of the most connected men in rugby. So long as he doesn’t repeat his offence, I think he will be able to add value to the RWC.

Haden’s appointment as a Rugby World Cup ambassador was a questionable one from the outset. His reputation has long been under scrutiny. His dubious display in the lineout against Wales raised persistent questions about his behaviour on the field

Good God, they are carrying a grudge.

The Dominion Post wants a national school of music:

News that the Government is refusing to stump up with $11 million to help fund a New Zealand School of Music is unsurprising, given the economic climate.

But it is disappointing. Wellington is indisputably the country’s cultural crucible, and such a school – to be a joint operation between Victoria and Massey universities – could only enhance its reputation.

Now, however, the school’s backers face a serious obstacle in the shape of Tertiary Education Minister Steven Joyce. He has told the universities to consider their options carefully – they had jointly pledged $10m to the school’s establishment – because the Government refuses to fund capital for new tertiary institutions.

The challenge ahead, therefore, cannot be underestimated, especially since what began as a $20m facility is now estimated to cost $60m.

I’m sure they have looked at this, but music often attracts wealthy patrons. There maybe some philanthropists out there willing to help fund the proposed school.

And the ODT talks three strikes:

There is no doubt many New Zealanders will take comfort in the passing into law last week of the Sentencing and Parole Reform Bill. And if indeed the controversial Act New Zealand three strikes legislation enjoys such a popular mandate, that is understandable.

Crime, especially violent crime, is a slur on society, a source of primal fear and unease and, periodically, the cause of crippling grief, loss and financial hardship for innocent individuals and families. …

National campaigned in 2008 on getting tougher on crime, and Act NZ, more specifically, put forward this law as part of its confidence and supply requirements. …

That is to say, while all agree it is right and proper to be tough on violent crime, that there is a retributive element to any punishment, that there are some recidivist criminals who will never respond to attempts at rehabilitation, the problem is not quite as simple as this law might seem to propose.

Its passage into legislation raises legitimate and fundamental questions: Is it good law? Will it make a difference?

I think it will. Those recidivist criminals often go onto commit scores and scores of crimes, bouncing into and out of jail all their life. Under this law, their third serious violent or sexual offence will see them locked up for a very long time, and the community will be safe from them while they are locked up.

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Editorials 27 May 2010

May 27th, 2010 at 12:00 pm by David Farrar

The Herald talks racecourses:

Not so long ago, Avondale and Ellerslie enjoyed virtually equal status in the world of horse-racing. The Avondale Cup was a highly prestigious event. How times have changed. This week, the Avondale Jockey Club suspended racing at its course after its meeting on July 3 because of severe financial problems. …

The same applies to Avondale. Its potential closure is not just a matter for the club and the industry. It is about a community and city resource that would be lost forever. Even now, the course is valuable for more than just racing. It is the venue for a Sunday morning market, and the club leases the infield to the city council for football and cricket. Other events could be held there. If the course were closed and the club raced elsewhere, Auckland, which proclaims so often that it wishes to be known as a vibrant city full of attractions, would lose one of its entertainment options.

Can’t say I care too much.

The Press criticises ACT over its ETS campaign:

The misleading and alarmist figures being propagated by the ACT Party and Federated Farmers about the cost of the carbon emissions trading scheme which will start in July are a last gasp from groups that have had difficulty accepting the idea at all.

In their latest scaremongering, ACT and Federated Farmers have suggested that the financial impact of the scheme in higher fuel and electricity prices has been seriously underplayed by the Government and that consumers, and particularly farmers, are in for an unpleasant shock when the scheme begins.

And the Dom Post reserves judgement on the three strikes law:

Now that the three-strikes legislation is in place, its real trial begins.

Supporters believe it will see a drastic fall in the number of serious offences – ACT MP David Garrett, pressed on Radio New Zealand to give a figure, said he expected a 5 per cent to 10 per cent fall in violent offending in the first five years of the law’s operation.

That will be easy to assess from the crime statistics.

I believe we will see a fall in serious violent offending, but only after a few years as it takes time for people to get a first strike, let alone a second or third strike.

If the new law had been in place when Graeme Burton began his life of offending, he would have been unable to shoot and kill Wainuiomata father Karl Kuchenbecker in Lower Hutt. At the time he killed Mr Kuchenbecker, Burton had more than 100 convictions. He was on parole for an earlier murder.


The ODT focuses on the creation of an artifical organism:

Even in the rational world of biological science, the publication in Science of the findings of an American-based team of researchers caused considerable excitement.

A bacterial cell had been controlled by a chemically synthesised genome.

That meant that the cell began replicating and making a new set of proteins entirely controlled by man.

In the secular world, this was briefly sensational, and described somewhat effusively as the creation of the world’s first “artificial cell”. …

There is no doubt that the team employed at the J. Craig Venter Institute has achieved an important technical step towards the goal of creating artificial or synthetic life.

But we are a very long way indeed from realising some of the speculation: the construction of human limbs or body parts or even a human being in the laboratory.

That remains in the realm of fiction.

For now.

I believe that within two generations, humans will be living to 150 or older as science discovers uses for stem cells, gene therapy etc.

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Three Strikes now law

May 26th, 2010 at 8:43 am by David Farrar

The three strikes bill has been passed into law, and this is a good thing.

I see two major gains from the law.

  1. A deterrent effect on some (not all) serious criminals who at sentencing for a first or second strike will be told by the Judge what they will incur if they commit a further strike.
  2. Recidivist serious violent and sexual offenders will end up spending much more time in prison, and over their lifetime bash, rape or kill fewer people.

This law is not retrospective so it will probably take some years for a criminal to get a second let alone a third strike.

There are ways the law could have been improved. I agreed with some of the points Maxim made – like still allowing a discount at third strike for an early guilty plea.

But overall it is a big step in the right direction, and it will make a difference. Congrats to David Garrett and Judith Collins for getting it through.

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Maxim on Three Strikes

May 5th, 2010 at 4:00 pm by David Farrar

The Maxim Institute has a paper by Professor Warren Brookbanks and Dr Richard Ekins on the Three Strikes law. It sets out arguments against the law, the main being a third strike of a maximum sentence is not a proportionate response.

Now I disagree with them in opposing the law. I think it will e a welcome step towards stopping the idiocy that we keep letting offenders out after minimal sentences for repeated serious offending.

But Brookbanks and Ekins have also proposed some amendments to the law, which I do partially agree with, and the Government could consider at the committee of the house stage. They are:

Authorise judges not to impose the maximum sentence on strike three if this would be manifestly unjust (this amendment would bring the legislation into line with the assertions being made by the ACT Party).

At the moment the law directs a Judge to impose the maximum sentence without parole for a third strike, unless this is manifestly unjust in which case they can give the maximum sentence with parole.

So long as the threshold for “manifestly unjust” is very high (and case law suggests it would be) and not used frequently, I support this change. There may be times when a 14 year sentence for aggravated robbery, even with parole eligibility, is manifestly unjust.

Retain presumptive eligibility for parole, or if this is not done, authorise judges not to order the sentence be served without eligibility for parole on strike two if this would be manifestly unjust.

I don’t agree with this proposed change. I regard parole as generally being a failed experiment, and the certainty of no parole for a second strike is important. Possibly could live with a “manifestly unjust” exception again but I worry some members of the Judiciary would interpret that to apply to every case as they don’t agree with the law.

Modify what counts as a strike from a conviction for a qualifying offence alone to at least a custodial sentence for a qualifying offence and preferably a custodial sentence of some length, say at least two years.

This doesn’t catch enough people, and it means that if Judges keep giving light sentences for serious violent offences, the offender never comes under the three strikes regime.

Make provision for strikes to lapse over time (perhaps after ten years).

I think this can be reasonable. Maybe a bit longer period than ten years, but I have sympathy for someone who does a first and second strike at 18 and 19 and a third strike at say 55, and they automatically get the maximum sentence. One could argue this can be dealt with under manifestly unjust exceptions, but I think an incentive for a strike to lapse is a good thing.

However I would make it a condition for a strike to lapse, that the offender is crime-free for that entire period of 10+ years. Not just of serious offences, but of all offences.

Make specific provision in strike three sentencing to recognise a guilty plea, allowing judges to discount the maximum sentence by up to 25 percent, depending on when in the trial process the plea is made.

At present, an offender gets a “discount” on their sentence of 5% to 33% for an guilty plea, depending on how early they plead guilty.

There is a potential problem that there is no incentive to plead guilty to a third strike offence. Some discount for an early guilty plea could solve that problem, and not undermine the regime overall.

Authorise the courts not to impose a life sentence for murder and manslaughter if this would be manifestly unjust.

Again, so long as manifestly unjust holds a very high threshold, I could love with that.

Specify that some instances of manslaughter (most notably accidents arising out of gross negligence) do not constitute a qualifying offence.

I suspect very few people convicted of that type of manslaughter have criminal histories, and it would normally be a first strike anyway. However I think the proposed change has some merit, in differentiating between types of manslaughter.

I’m not sure if the Government is open to changes, but it would be good to hear debate on them. Maybe Opposition MPs can move them as amendments.

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Bring on Three Strikes

May 5th, 2010 at 1:00 pm by David Farrar

Later today I am going to blog some criticisms of Three Strikes by Maxim, and suggested amendments. But for now, want to highlight why I support it.

The Dom Post reports:

A burglar who terrorised a woman has dodged jail, despite a previous conviction for attempted murder after stabbing a sleeping teenager in his bed.

The woman, who was chased out of her home and down the street by Burt Te Manu Tangiata Rikihana, 27, described the sentence of supervision as “a joke”.

Rikihana was arrested in December after forcing his way into a Petone home, where the woman was home with her three-year-old child.

Rikihana tried to grab the woman, but she got away from him. She fled down the street, before police arrived and caught Rikihana as he chased her.

In Lower Hutt District Court yesterday, he was sentenced to 24 months’ intensive supervision and 200 hours’ community service on burglary and assault charges.

It is pretty obvious from his pursuit that he was not just there to burgle, but to rape or kill.

In February 2002, Rikihana was sentenced to nine years’ jail for attempted murder, after stabbing Hastings 15-year-old Paul Robertshaw as he lay sleeping in bed.

This was an unprovoked attack on a sleeping kid, who he didn’t even know.

Rikihana took a knife from the kitchen, held it with both hands and stabbed the teenager with such force the knife came out his back. The teen survived.

Now under three strikes, this assault would be the second strike. As the Judge did not give a jail term, the penalty would be the same.

But under three strikes, if Rikihana commits a third violent or sexual offence, he would be given the maximum jail term without parole.

That might prevent more victims down the track.

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Three Strikes Debate

April 5th, 2010 at 10:00 am by David Farrar

The Herald reports:

The Government’s revised “three strikes” bill is estimated to cover more than five times as many criminals as the original legislation, significantly widening it from the original target of the “worst of the worst” offenders.

The issue was highlighted in a Maxim Institute-sponsored lecture at Victoria University in Wellington by Auckland University professor Warren Brookbanks and law lecturer Richard Ekins.

It’s good to have debate on this, as people should be aware of what the law will do.

For my part it would be nice to have a focus on how many victims would have not been killed, raped, assaulted or robbed if this law had been in force for the last decade, not just a focus on how many offenders will have been affected.

The Sentencing and Parole Reform Bill, now before Parliament, would set up a warning and sentencing system for anyone convicted for one of 40 qualifying offences deemed to be serious violent or sexual crimes.

Strike one would be a normal sentence and a warning; strike two would be a sentence without parole; strike three would be the maximum sentence for that offence, without parole.

The original bill held that a conviction counted as a strike for a violent offence where the sentence was five years or more.

The initial proposal called for an extra 132 prison beds in the next 50 years; the new one is estimated to require 725 beds.

Personally I’m comfortable with that. The original proposal would have affected well less than a dozen criminals a year.

I don’t think we have a high number of criminals in this country. We just have a number of criminals, who commit a high number of crimes each. And having a rotating door policy where they are in and out of prison after not just their third serious offence, but sometimes their 100th offence needs to come to an end.

Professor Brookbanks said that “qualifying offences” was a much lower test, as it applied to convictions for certain offences regardless of how serious or trivial they were.

“The shift from qualifying sentence to qualifying conviction radically widens the scope, bringing far more offenders into the scheme,” he said.

Yes it does, deliberately. The old scheme would have had little deterrence value in my opinion. The good feature of this new scheme is certainty (and remember certainty of being caught is one of the biggest deterrences to crime) of sentence.

If you have had two previous strikes, you have had a Judge in court tell you to your face that if you commit another serious offence, you will get the maximum sentence for that crime with no parole. There is basically no chance of getting 12 months jail, and out in six. You will get a sentence of (generally) at least seven years with no parole for your next serious offence.

He said that with no incentive to plead guilty to a strike-three charge, there would be more trials and appeals, which would be more stressful for victims and see court costs rise – a point raised by Labour critics.

A fair point, but how many defendants facing a third serious criminal charge, do plead guilty? Give us some hard numbers.

But as I said, the numbers I really want to see is how many fewer victims of crime there would have been, if this had been the law up until now. How many crimes have been committee by criminals after they have had a third serious offence conviction, during the period they would have served if given the maximum sentence?


The revised Three Strikes Law

March 27th, 2010 at 2:45 pm by David Farrar

The report back from the Select Committee is here. The key principle is still:

  1. 1st serious offence – normal sentence and parole
  2. 2nd serious offence – normal sentence, no parole
  3. 3rd serious offence – maximum sentence, no parole

However there are a few tweaks about offences with life sentences.

If you get a third strike for say rape, then the penalty would be 20 years without parole. A court can decide that would be manifestly unjust, and allow parole – but still the maximum sentence. So they would be eligible for parole in 14 years or so.

If the third offence is manslaughter, which normally has life as a maximum sentence, the requirement is a minimum imprisonment of 20 years, and if that is manifestly unjust, then a minimum imprisonment of 10 years.

If murder is a stage two or three offence, then the sentence will be life without parole. If this would be manifestly unjust, then the minimum period of imprisonment is at least 20 years.

Also they clarify that at a third strike the court can sentence an offender to preventative detention, with a minimum no release period of at least what their third strike would have been (unless manifestly unjust). This means a serial sex offender for example can be given preventative detention, rather than a finite term.

So what does this mean for a number of offences. Graeme E will correct me I am sure, where needed, but at a glance a likely scenario is:

Indecent Assault

  1. 1st strike – three years (court of appeal starting point), with parole at two years
  2. 2nd strike three years, no parole
  3. 3rd strike seven years, no parole. If manifestly unjust parole eligibility at 4 years eight months

Aggravated Robbery or Wounding with intent to do GBH

  1. 1st strike – four years, parole in two years eight months
  2. 2nd strike – four years, no parole
  3. 3rd strike – 14 years, no parole. If manifestly unjust parole eligibility at 10 years four months


  1. 1st strike – eight years, parole in five years four months
  2. 2nd strike – eight years, no parole
  3. 3rd strike – 20 years, no parole. If manifestly unjust parole eligibility at 13 years four months


  1. 1st strike – not sure if there is a sentencing guideline, so say 15 years, parole in 10 years
  2. 2nd strike – 15 years, no parole
  3. 3rd strike – life, with parole eligibility in 20 years. If manifestly unjust parole eligibility after ten years


  1. 1st strike – life, parole eligibility after ten years
  2. 2nd strike – life, no parole. If manifestly unjust parole eligibility after 20 years
  3. 3rd strike – life, no parole. If manifestly unjust parole eligibility after 20 years

Now it seems there may be some way that if even 20 years non parole is also manifestly unjust, it then falls back to normal sentencing for murder.

The threshold of manifestly unjust is historically quite high. For example, a Judge can use it at the moment to not issue a life sentence for murder, and I can’t recall the last time that occured.

Also worth stressing is that the strikes happen regardless of what were the other strikes. So they do not have to be strikes of the same offence. The 1st strike might be indecent assault, the second strike rape and the third strike manslaughter.

Also the first strikes may not even result in a custodial sentence. The figures above are starting points for those offences. It may be a 1st strike avoids jail – but they will still get told the consequences of further strikes.

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Three Strikes arguments

March 10th, 2010 at 10:28 am by David Farrar

The Herald reports:

The proposed three strikes bill would be grossly unjust and could result in an 11,000 per cent rise in time spent in prisons, an independent organisation on crime says.

This is a subtle form of bias. Calling an organisation “independent” is a positive brand which suggests expertise and neutrality. In reality the organisation quoted is a lobby group like the Sensible Sentencing Trust.

He pointed to the case of Leandro Andrade who, under the three strikes legislation in California, was sentenced to two 25-year sentences for stealing children’s videos worth US$153.54 ($219.58) from two Kmart stores. They were his third and fourth strikes; his first two were home burglaries committed in 1983.

A nonsense example as neither theft nor (non aggravated) burglary qualify as a strike offence under the proposed New Zealand law.

Commits two relatively minor offences (street robbery, for example), then a more serious offence (aggravated robbery) but a minor case. Instead of five years, they get 14. No parole.

The robber would have been warned after both the first and the second strike that a third strike will get a maximum sentence. They then make a deliberate decision to not only continue robbing people, but to do so using a weapon.

I think there will be a lot less people robbed after the third strike.

Commits two different offences (indecent assault, wounding with intent) then is negligent resulting in a death (or drinks and drives, killing someone) and gets life without parole.

It is not automatic that drink driving causing death will result in a manslaughter charge. In fact I would say normally it does not, and under this law Crown Law would have to agree to the third strike charge.

Offender commits a minor offence (wounding with intent in a pub brawl), then murder (self-defence, provocation or mercy killing) and gets life without parole.

I love how wounding with intent is called a minor offence. It is “… wounds, maims, disfigures, or causes grievous bodily harm to any person.” Frankly having someone disfigure you or cause you grievous bodily harm is not a minor offence – that is why it counts as a strike.

Secondly self defence is not murder.

Thirdly if you have a strike for wounding with intent, you should not murder someone if provoked.

Fourthly the mercy killing is so improbable. The sort of people who put their dying spouse or parent out of their misery do not tend to have criminal records, and in the hugely unlikely chance they did, the Judge does have some discretion to not impose the full strike penalty.

Consider Bruce Emery’s manslaughter conviction for chasing and stabbing a tagger. If he’d had two previous convictions from when he was younger and had reformed, he’d get life imprisonment.

The law is not retrospective. Any earlier offending by Emery would not count unless done after this law had been passed. Emery would have to have committed two serious violent or sexual offences, and would know he is on a third strike. That might well have persuaded him not to run after a tagger with a knife, and may have saved the taggers life.

Also I suspect Emery would have far less public support for what he did, if it transpired he did have a criminal record with at least two previous serious violent or sexual offences.

Two brothers kill their mother in a mercy killing because she has a terrible disease. One has no previous convictions and is paroled after a few years. The other has a previous strike and gets life with no parole.

The opponents of the law always go to the mercy killings, despite the miniscule number we have. Again it is very rare that people who put relatives out of their misery have criminal records, and there is some judicial discretion against a manifestly unjust sentence.

But more to the point, the brothers, if they are not morons, would agree that the brother with a previous conviction should not be involved, as he would face a longer sentence.


Laws on Three Strikes

January 24th, 2010 at 7:53 am by David Farrar

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.

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The Press on three strikes law

January 21st, 2010 at 9:58 am by David Farrar

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.

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Reaction to Three Strikes

January 20th, 2010 at 8:59 am by David Farrar

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.

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Three Strikes and the Max

January 19th, 2010 at 4:22 pm by David Farrar

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.

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That was my suggestion!

September 23rd, 2009 at 5:57 am by David Farrar

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!

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No one would get a third strike!

April 7th, 2009 at 7:10 am by David Farrar

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
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Repeat killers

March 29th, 2009 at 10:37 am by David Farrar

The Sunday Star-Times reports that nine convicted killers are repeat killers. Very timely story as we debate whether to go with National’s two strikes and no parole law or ACT’s three strikes and life with minimum 25 years no parole law.

I got sent a while back the calculations for Rodney’s claim that 77 Kiwis would still be alive if ACT’s three strikes law had been in place previously. It is:

  • There are currently 391 offenders serving life sentences in prison. Of these, 68 had three sentence episodes for violence prior to the imposition of the current life sentence.
  • There are currently 79 sentenced offenders in prison for whom manslaughter is the major offence. Of these, nine (or 11%) had served three prior sentences for violence before imposition of the current sentence.

So 68 + 9 = 77 people who would still be alive if their killers had been given life after their third serious violent offence. And this is just for those who are still in prison.

So the murder rate would drop by 17% and the manslaughter rate by 11% if the three strikes law had been in place.

What I would find interesting is how many people (in say last 15 years) have been sentenced to three seperate jail terms for violence (and would now be serving a life sentence if the three strikes law had been in place). Also how many of those stopped offending after the third jail sentence for violence and how many carried on offending?

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Three Strikes Law may breach Bill of Rights

March 2nd, 2009 at 7:36 am by David Farrar

The Herald reports that the Attorney-General has advised that the “three strikes” bill breaches the Bill of Rights. That will be one of the factors National will grapple with in deciding whether to support it beyond select committee.

I’m not sure on this, but wouldn’t the AG have given his advice at the time of introduction or first reading? I’m wondering why it has just now been reported. Mind you, the advice is not yet available on the Ministry of Justice site.

As Attorney-General, Mr Finlayson is required to report any bill that appears inconsistent with the Bill of Rights.

His concerns relate to the inconsistencies it would lead to, such as “the imposition of a life sentence for offences that would otherwise be subject to a penalty of as little as five years”.

This is of course deliberate. The intent of the three strikes law is basically a value judgement that if you have committed a third crime that is so bad, it results in a sentence of at least five years, then you are judged likely to carry on offending indefinitely. The third strike is designed not so much to punish, but to protect the public.

The select committee hearings will be vigorous I am sure.

UPDATE: I’ve been informed that the Attorney-General’s advice was tabled when the bill was introduced – so this story is now some new info. Also the advice may not yet be on the MOJ website, but it is on the Parliament site.

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