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.

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.

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.

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.

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.


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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.