Guest Post: Supreme Court once again overrides parliament

A guest post by David Garrett:

On Thursday 7 October, the Supreme Court issued the latest judicial assault on the Three Strikes (3S) law. In 117 pages of convoluted linguistic and legal gymnastics, it said what I could have in less than ten pages: that indecent assault being a strike offence was problematic, it had given rise to unintended results, and it should be removed from the list of 40 strike offences. The 40 strike offences are all offences involving serious violence for which the maximum penalty is seven years or more in prison.

Sadly nowhere in those 117 pages have any of the judges – their opinions are not unanimous on several points – found it appropriate to observe, as they certainly could have, that of the couple of thousand “strike” cases which have now come before the courts, there are only three that are truly problematic, and all of those are indecent assaults. Therefore if they were interested in seeing the law work better (in fact they, like the government, just want it gone) they could have recommended the removal of indecent assault as a strike offence. But I digress.

The judgment heavily relies on the supposed breach of the Bill of Rights Act (BORA) that is occasioned by third strike sentences – at least  where a third strike is a low level indecent assault. While the Judges acknowledge that BORA is not a constitution like the American Bill of Rights, they have effectively given it that status – again, at least as far as cases like the present are concerned.

I must give credit here to my friend Graeme Edgeler, who opined 11 years ago – correctly as it has turned out – that indecent assault as a strike offence was going to cause problems because of the huge range of conduct which that offence encompasses: as Graeme put it at the time, everything from an unwanted pat on the arse to something just short of sexual violation.

The judgment just released is an appeal by one Daniel Fitzgerald, a serial low end sexual offender who apparently has mental health issues – but not to the extent, the Court found, that he was unaware of what he was doing. Nor was he unaware of the consequences of his actions (in fact immediately after the offence was committed he said “I’m in big trouble now”). He is simply unable to control his urges, and is to an extent more to be pitied than condemned.

All three of his “strikes” have been low level sexual assaults – grabbing women on the street and trying to kiss them and the like. His third strike offence – involving very similar conduct as his first two – involved him grabbing a woman in Cuba Street Wellington, and trying to kiss her on the mouth. She moved her head, resulting in the kiss landing on her cheek instead. Fitzgerald then shoved the woman’s friend who tried to pull him off the victim before another member of the public intervened.

Because of the “three strikes and the max”  3S regime, conviction for that offence in 2017 resulted – quite correctly – in a seven year sentence, that being the maximum for indecent assault. The sentencing judge – also quite rightly in my view  invoked the “manifestly unjust” proviso – much abused in other cases, particularly murder – which meant that Fitzgerald was  able to apply for parole, and thus not necessarily serve the full sentence.

It is notable that since the offence occurred in December 2016, Fitzgerald has applied for parole four times – and been rejected every time, because he is still seen as a risk to the public. All the judges who have considered his case are of the view – and I agree – that the proper place for Fitzgerald and offenders like him is a secure treatment facility and not prison. The problem of course is that all such facilities were closed 30 years ago. The only two alternatives now remaining to protect the public from people like him are prison, or for the truly “mad not bad”, a secure treatment facility like the Mason Clinic. The third option – letting him out each time he offends after serving a relatively short sentence – is not acceptable to me. All that does is create more victims – and one of these days his indecent assaults may not be “minor”.

Rather than contorting themselves at great and tedious length to condemn 3S, the judges would surely have been much better to highlight the fact that it is a lack of alternative facilities for men like Fitzgerald which is the problem, and not the 3S law itself. Being the highest court in the land, it would have been entirely appropriate for the Court to make recommendations regarding establishing  proper facilities for men like Fitzgerald, or at least observing that they do not presently exist.

Let’s put this case in perspective. Since the 3S law came into force in June 2010, there have been about 13,349 first strikers, 640 second strikers, and only twenty-one  third strikers. This pattern is exactly the same as transpired in California when their 3S law was passed 30 years ago: second strikers are a small fraction of the first, and third strikers a small fraction of the second. It is significant also that while 3S in California presaged a precipitous drop in offences of non-sexual serious violence, sexual offences were much less affected. While I am not a psychologist, I would opine that this is because sex is a fundamental human driver, while robbing liquor stores and bashing people is not. In short, it is much more difficult to deter people from acting on their sexual urges than from their thoughts of obtaining easy money through an armed robbery.

If we remove the three cases like Fitzgerald’s from the stats, what are we left with? Try though they most certainly have, the left wing media have been unable to come up with any equivalent of the American cases such as someone being sent to jail for life for stealing a set of golf clubs (the “sent to jail for life for stealing a pizza” case is an apocryphal story, which to the best of my knowledge never happened). In any event, such cases could never happen here because of the way our 3S law is framed.

The  last “poor boy” case I recall being highlighted was that of one Elijah Whaanga, an unpleasant violent thug whose second strike involved the aggravated robbery of the victim’s cellphone, skateboard and a hat. The media – in particular RNZ – described Whaanga as “a playground bully” despite neither of his strike offences occurring in a playground, and the fact that Whaanga was aged 21 at the time of the second offence. They also conveniently failed to mention that Whaanga’s first strike offence – also an aggravated robbery – involved him kicking the victim’s teeth out, and stealing all his money.

For his second strike offence, Whaanga was given two and a half years without parole. The sentencing judge also warned him in no uncertain terms:

“When you next use violence or threats to steal a hat or a cellphone or a skateboard, you will be sent to the High Court and there you will be sentenced to 14 years without parole”

It would seem Mr Whaanga has learned his lesson; in any event he has not – so far as I know – been convicted of a third strike offence. Something the lefties never “get” is that you can be an illiterate thug and still clearly understand cause and effect, and it would seem Mr Whaanga has got the message.

The government has vowed to repeal the 3S law, and I have no doubt they will eventually do so – when they get around to it – despite the fact it is massively popular. In a poll done by our host’s company several years ago, even 45% of Green  voters supported it. I thought that must be a typo, but it apparently was correct.

If the government was really interested in improving the law, rather than repealing it they would simply remove indecent assault from the list of strike offences. That would solve the problem the Supreme Court took 117 pages to address. But that won’t happen; instead ideology will triumph over the public interest with inevitable results. And if the judges of the Supreme Court are so keen on making law rather than interpreting it, they should resign their highly paid sinecures and stand for parliament. What they have been doing with three strikes is nothing less than a constitutional outrage – and I’m quite sure they well know that is so.

Update:

While I was writing this piece another case perfectly illustrating how judges are deliberately flouting the law was reported. This particular POS

https://www.stuff.co.nz/national/crime/126624619/sawnoff-shotgun-used-in-thefts-of-shoes-watches-caps-and-phone

 stuck a sawn off shotgun up the noses of several different victims and assaulted and threatened others. He pleaded guilty to six  charges of aggravated robbery which together constituted this third strike. The judge quite correctly found he had no option to sentence the offender to the maximum fourteen years for aggravated robbery – but then said such a sentence would be “crushing” for a delicate petal of his age, and therefore invoked the manifestly unjust proviso, meaning the prick can apply for parole in less than five years. This case and many like it mean the law as drafted  and as passed by parliament  never really had a chance to work as intended.

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