Tension over three strikes law and a possible solution

The Herald reports:

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

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

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

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

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

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

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

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

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

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

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

So what you would have at each stage

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

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

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

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

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

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

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

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

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

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