The rise of the bastard son of the three strikes law

Last week was the Government’s law and order week.

The bastard son of the three strikes law aka the Sentencing (Reinstating Three Strikes) Amendment Bill was introduced into Parliament.

As I said previously the law had a somewhat disturbed background.  Its original proponent was someone who had been convicted of stealing a dead baby’s identity.

It was a sports slogan masquerading as a serious penal policy.  Its genesis was the US of A where an informed considered approach to criminal justice is subservient to good old tough on crime toting politicians.

It basically has a list of offences where first time up a defendant will be given a warning, second time up an offender serves the imposed sentence without parole and third time up unless it would be manifestly unjust an offender has to serve the maximum sentence for the offence.

But as predicted the law came up with unpredictable and unjust consequences.

There was one case where someone who suffered from schizophrenia and drug and alcohol abuse and who had a history of paranoid delusions and auditory and visual hallucinations, and needed ongoing mental health care inappropriately kissed a stranger on the cheek.

He was charged with indecent assault and as he was on his third strike he was sentenced to seven years imprisonment.

On appeal a majority of the Supreme Court held that the sentence of seven years’ imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders, and was therefore so disproportionately severe as to breach the Bill of Rights. They also agreed that this right not to be subject to cruel or disprortionately severe punishment is not subject to the reasonable limits protection under the Act.  Based on the Parliamentary debates and promises made by right wing politicians they held that Parliament did not intend, in enacting the three strikes regime, to require judges to impose sentences that breach s 9 of the Bill of Rights and New Zealand’s international obligations.

The case was remitted back to the High Court where he was sentenced to six months’ imprisonment, meaning that he was released immediately. At the time of sentence he had spent 1,789 days in prison, almost 1700 days longer than he would have been required to serve under his resentence. The stupidity of the previous law is very clear from this background.

But the Government is claiming that this new version is all improved and will avoid the nasty pitfalls of the previous law. There will be limited Judicial discretion at each stage to hopefully avoid the pitfalls clearly evident in the Fitzgerald case.

Labour MP Duncan Webb said this on the bill’s introduction:

 Well, this bill is about choices and values, and this Government chooses window dressing over substance. It chooses rhetoric over outcomes. We know that three strikes doesn’t work. We absolutely agree that we want to see a reduction in offending and a reduction in the number of victims, and we want to see reoffending reduced as well. But this reheated policy flies in the face of all of the evidence. The Minister’s own officials have said that there is no consistent pattern to changing crime from three-strikes regimes. The officials have made it absolutely clear that this proposal will do no good whatsoever—in fact, quite the reverse. Not only that, but every other jurisdiction in the world, more or less, where these regimes have been introduced have been rolling them back, have been watering them down, or getting rid of them entirely.

This regime that will have no impact on reoffending, will not keep communities safer, will cost $10 million a year, and we’ll see around 90 people in prison who wouldn’t otherwise have been in prison. Well, look, the fact of the matter is that we do think that where there is serious offending, there should be a serious sentence. In fact, we think a rule that says that a judge “must impose the maximum penalty prescribed for the offence [where] the offending is within the most serious cases for which the penalty is prescribed, unless there are circumstances [which make it] inappropriate;”—we think that would be a good rule. It sounds a bit like this legislation, except it’s not. It’s actually section 8(c) of the Sentencing Act. So the fact of the matter is sitting there right now in the Sentencing Act is a provision which says a judge must give the most serious sentence to the most serious offending.

Presuming the Act is passed it will be interesting to see how it fares before the Courts. It is guaranteed that further perverse consequences arise but I get the impression the Government is completely indifferent to this. The discussion about the headline is more important than the actual operation of the law.

The other law and order development last week was the announcement of further changes to the sentencing laws.

From Radio New Zealand:

Justice Minister Paul Goldsmith has announced the approach the government plans to take for requiring judges to hand down tougher sentences.

The moves line up with what the coalition parties campaigned on during the election.

It includes:

• Capping sentence discounts judges can apply to 40 percent of the maximum unless it would result in manifestly unjust sentencing outcomes
• Preventing repeat discounts for youth and remorse
• Introducing a new aggravating factor to address offences against sole charge workers and those whose home and business are interconnected
• Encouraging the use of cumulative sentencing for offences committed while on bail, in custody, or on parole
• A maximum sentence discount of 25 percent for early guilty pleas, reducing to 5 percent if a guilty plea is entered during the trial
• Adding a requirement for judges to take information about the victims’ interests into account

Goldsmith said judges would still have discretion to consider individual circumstances.

“People’s lives are kept on hold for years under the current system.”

He said the government estimated there would be more between 1480 and 1730 more people in prison each year over the next 10 years as a result of the changes.

This was estimated to cost an extra $165m and $192m a year, “but it very much depends upon the prevalence of crime”.

If only National adhered to the views of its former leader Bill English who described the prison system as a moral and fiscal failure.

And there is more than a hint of Trumpian dog whistle blaming of liberal judges as if somehow they are to be blamed for crime.

The reduced discount for guilty pleas will clog the courts up with cases. Like it or not a significant discount on sentence can persuade recaltrient defendants to accept guilt. Without that incentive they will more often try their luck at trial. And some of the other proposed changes happen anyway. The Courts already take victims interests into account. And the fact that an offence occurred while the offender was on bail or still subject to a sentence is already an aggravating factor for sentence.

All of this, the cost, the injustice or the misery does not matter. All the Government needs or wants to achieve is giving the impression that it is being tough on crime. And the fact that it is relying on a system that is a moral and fiscal failure is of no consequence.