The Three Strikes abomination is no more

Written By: - Date published: 7:50 am, August 11th, 2022 - 44 comments
Categories: act, Andrew Little, labour, law, law and "order", national, same old national - Tags:

I am going to exercise my author’s privilege and plagiarise this post that I wrote in 2018 which is still relevant.

The three strikes legislation, the brainchild of dead baby identity stealing former ACT MP David Garrett, is no more.

The legislation 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 boy 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.

This has resulted in anomalous results.  In a local case the result of which was described by Andrew Geddis as being batshit crazy an offender on his third strike was sentenced to seven years for pinching a prison guard’s bottom.  And in America one legendary case involved an offender who was sentenced to 25 years for stealing a piece of pizza.

The basic problem is that under these schemes Judges have no discretion to deal with the nuances of a case and work out a result that is fair and just.  The underlying pretext is that all judges are too soft and the heavier the sentence the better.

The issue was considered by the Supreme Court in the case of Fitzgerald v R.  Mr Fitzgerald’s circumstances and the circumstances of the offending were described in these terms:

[15] The appellant suffers from long-standing and serious mental illness, which began when he was aged 15, over 30 years ago. He has been admitted at least 13 times to mental health facilities, but has otherwise been treated in the community. He suffers from schizophrenia and substance (drug and alcohol) abuse. He has a history of paranoid delusions and auditory and visual hallucinations, and needs ongoing mental health care. These health issues have led to difficulty in sustaining accommodation.

[16] On 3 December 2016, the appellant approached two women walking along Cuba Street, Wellington. He grabbed one of the women by both her arms, pulled her towards him and told her he wanted to kiss her, before trying to kiss her mouth. She moved her head so that the kiss fell on her cheek. The appellant was convicted of indecent assault in respect of this conduct.

[17] The appellant also assaulted the second woman. She tried to pull the appellant off her friend, and in response the appellant grabbed the second woman by her arms and pushed her backwards towards a nearby wall, holding her for a moment before letting her go. The appellant was convicted of assault for this conduct.

[18] The overall incident lasted a moment or two, but was distressing nevertheless. The victim of the assault, who had been subject to past trauma, provided a victim impact statement in which she described the continuing emotional impact of the assault.

Mr Fitzgerald was sentenced to seven years for the indecent assault.

The court tried to perform procedural somersaults and work out if a discharge without conviction, which would then remove the need to apply the three strikes law, was appropriate.  Discharges are available where the consequences of a conviction are out of proportion to the gravity of the offence.

It did not get there.  Instead the Justices decided, in a very judicial way, to say that the law was bollocks.

A majority 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 decision highlights why it is rational and just to repeal this law.

Andrew Little’s justification for the repeal of the law which predates the Fitzgerald decision is reported in this Stuff article:

Justice Minister Andrew Little has signalled what could be the beginning of the end of New Zealand’s three strikes law.

Speaking to media at the Beehive on Wednesday evening, Little said a proposal was going to Cabinet in about 10 days time to endorse a repeal of the controversial law.

“It will then go through the normal legislative, Parliamentary process. We are not doing wholesale reform until we get a good public debate going.”

He said the tough line the justice system was currently taking on criminals was “not working”.

“I think there is an acceptance now that it just doesn’t work,” Little said.

The third reading debate in Parliament was interesting.  Only one National MP mentioned that Bill of Rights and it was only in passing.  The essence of their logic was longer sentences good, shorter sentences bad.

National has promised to reinstate a similar law if they regain power next year.

44 comments on “The Three Strikes abomination is no more ”

  1. Patricia Bremner 1

    This law follows their "Top Down" thinking. The discussions will be revealing.

  2. Tiger Mountain 2

    Excellent result.

    No further qualification is required if you have mastered basic comprehension and can understand Micky’s post.

    Enough praise though–Labour need to get their act together–pun intended–because ACT have some very bad policies indeed. Check their filthy site–90 day trials anyone? ditch FPAs which are barely here, attack Māori in anyway possible, etc. etc. Some of the ACT MP mugshots look like incels on a night out.

    The low moral state of the natzos is a worry too–they will certainly maintain the Epsom life support for Mr Seymour–and likely adopt ACT policy if the disgruntled vote puts them in office together.

    • Mike the Lefty 2.1

      Given the state of the labour market at the moment, if ACT started talking about bringing back the 90 day trial period the employers' associations would probably tell them to pull their heads out and get real. It is hard enough to get staff now so you don't need right-wing ideological newts making it even harder for you.

  3. Robert Guyton 3

    Kiwiblog will be aflame!

  4. Ad 4

    Total prison population under Labour is consistently down through the leadership of Minister Little.

    Prison facts and statistics – June 2022 | Department of Corrections

    [image re-sized]

    • Tiger Mountain 4.1

      Incremental changes have been made regarding such statistics, such as assisting prisoners, remand and others, with low literacy levels to fill out forms! So people are out, rather than detained for months on a technical basis of “required information not supplied”.

    • infused 4.2

      And crime is up! yay

    • That is right, and it is due to policy tweaks rather than dramatic changes. You may recall that around the time the Labour Government was elected, there was debate about the possible need for the government to spend around $1 billion on a new prison. Musters were full, there was over-crowding, some prisoners were being moved to prisons remote from their families and local communities to alleviate overcrowding and in some controversial cases, police station cellblocks, which were defined as prisons, were being used as temporary prisons.

      My recollection is that the prison muster around the country totalled close on 11,000 prisoners. Many of these were remand prisoners, people who stood accused of criminal offences but who had not been convicted and some of whom would not be convicted of what was alleged against them. Remember that people are deemed to be innocent until their guilt is either admitted through a guilty plea or determined by the fact finder, be that a judge sitting alone or a jury.

      The reforms were relatively simple ones. First, a problem many defendants had was obtaining a suitable bail address. Many are illiterate or struggle dealing with basic things such as applying for assistance from Work and Income or seeking accommodation. More effective assistance was given to criminal defendants to source suitable accommodation. Secondly, the parole system permits the conditional release of a prisoner before the end of sentence date. The legal test for release is that the parolee does not constitute an undue danger to the community. Many prisoners were denied parole simply because they were unable to complete the programmes thought to be necessary for their rehabilitation and reintegration. Work done on coordinating these has mitigated this problem allowing more prisoners to be parolled.

      Thirdly, getting rid of "Three Strikes" eliminates a hugely inequitable and ineffective populist nonsense policy that was insanely expensive. Most murderers actually do not go on to commit further criminal offences once released from prison. It is witheringly expensive to keep people locked up; an average of $100,000 per year per prisoner.

      Labour has reduced the prison population and deserve credit for this. The fact is that serious crime in general has decreased for quite a number of years yet the prison population grew partly because of a more penal approach to offending (longer sentences, restrictions on parole and more restrictive bail laws) and partly due to inefficient management so that rehabilitative programmes could not be completed in a timely way.

  5. woodart 5

    I think you need to look harder. the three strikes law was directly linked to the privatisation of prisons, and is a major plank in the private prison regime in the states. garrett was linked to the sensible? sentencing trust, who had links to private prison orgs from the states. its a very poor business plan to actualy rehabilitate offenders, when you can have a three strikes and your a money maker, law .

  6. Tiger Mountain 6

    Agree, three strikes was a good way to produce more customers. The penetration of public infrastructure by private capital, or even the direct sale and handing over of it, has always been a main driver of monetarist neo liberal economics.

    Charter Schools, PPP infrastructure projects like Transmission Gully, a second tier private health system, and contracting out anything else that moves are no different from private prisons–except the most extreme sanction the state can take against citizens bar the death penalty is incarceration. That function should involve a serious justice system not for profit operators serving baked beans on paper plates to the underclasses.

    But still good to see Three Strikes officially gone.

  7. " The three strikes legislation, the brainchild of dead baby identity stealing former ACT MP David Garrett, is no more "

    That comment re " dead baby identity stealing " demeans your whole post.

    Despite the fact we all know what he was held accountable for and quite rightly suffered the consequences deflects the intention of your post which is to celebrate the removal of this law.

    Author’s privilege indeed.

    • mickysavage 7.1

      Why? It is what he did. His level of hyprocrisy really stands out.

    • I am of the view that in general people deserve second chances and an opportunity to rehabilitate. Many people make adolescent mistakes, or even adult mistakes but can learn from them and avoid future transgressions.

      However, David Garrett was very much a "tough on crime" populist. The "Three Strikes" policy did not reflect forgiveness, restoration and rehabilitation, but was an endorsement of a fantasy world in which criminals were logical and practical people capable of rational thought, deliberation and appreciation for consequences, when in fact they are generally poorly educated, often addled with drugs, impulsive people who live in the moment without heed of possible consequences.

      Mr Garrett turned out to be imperfect himself. In Tonga, he was convicted of assault, a fact he neglected to mention to the District Court when he was applying for a discharge without conviction on a charge of obtaining a false passport. The latter, although quite a serious offence, was a spectacularly foolish idea to see if the method outlined in Frederick Forsythe's book, The Day of Jackal actually worked. It did, but Garrett was eventually charged as a result. Later, he was convicted of drunk driving.

      Now, I accept that none of these things in isolation should necessarily prevent someone from having a political career, especially if he had been contrite about it, not lied to the Court and demonstrated that contrition with a show of some empathy towards those whose lives he set about making even worse through a blatant act of political populism. In the present context, while Sam Uffindell's brutal schoolboy assault is a serious matter, I agree with the view that a person should be able to live down such a matter carried out in a moment of foolishness when he was a teenager [although I do note that his bullying behaviour seems to continued into his university years].

      Perhaps the lesson is that if you are going to beat the populist "tough on crime" drum, you need to be squeaky clean yourself.

  8. Belladonna 8

    I expect to see any previous 'strike' offender, coming up again in the courts for a serious offence, to be plastered across the papers. Contrasting the current with the previous 'strike' sentence.

    Crime is a pretty hot topic at the moment (with the ram raids, etc.), and many middle-NZers – aren't really interested in whether or not rehabilitation works for serious offenders. They want violent criminals (murderers, rapists, child-abusers, etc.) behind bars.

    It may not be the enlightened way – but most people just aren't that 'enlightened'.

    Really, this is a gift to ACT in campaigning over the next year or so, (it's 'their' policy, after all). Giving them significant air-time after every trial – and plenty of time for 'bad' cases to arise. I'm sure they're examining the upcoming court cases with great interest.

  9. Mike the Lefty 9

    Three strikes was a political stunt gained to get the "laurinorda" lobbyist votes.

    It didn't do what its founder claimed it would do – namely get criminals off the streets and reduce reoffending.

    You are not tough on crime just because you legislate for tougher punishments.

    Even the Victorians came to realize that.

    You are tough on crime if you are prepared to put up enough money to fund a well trained, well organized and sufficiently staffed police force.

    National and ACT will not do that.

    Labour haven't either, to be fair.

    • Belladonna 9.1

      It didn't do what its founder claimed it would do – namely get criminals off the streets and reduce reoffending.

      Perhaps it is/was a political stunt. But there's no denying that it's a popular one.

      The community groups and work discussions I'm hearing (I work in a fairly diverse environment – with lots of different ages, cultures and salaries represented), are becoming increasingly intolerant of the apparently unresolvable crime wave hitting Auckland.

      There is a very real perception that Labour is soft on crime, and this repeal of 3 strikes plays right into that. [Yes, I know the 2 things aren't directly related, but it's public perception I'm talking about]

      And, while incarcerating 'dangerous' prisoners for longer doesn't resolve any of their issues once released; it does keep them out of the community – therefore reducing their chance to offend in the short/medium term. So in the most elementary of senses, it absolutely does get the worst criminals off the streets.

      This is the kind of case that most people think about, when it comes to 3 strikes criminals.

      • Mike the Lefty 9.1.1

        Agreed it was populist, and populism often works because it involves drawing political support by telling people what they want to hear.

        Winston Peters is a master of it.

        Of course the NZ Herald would spare no resources in trying to find something that would make the political left look bad – that paper has been doing that since 1863.

  10. Maurice 10

    "And, while incarcerating 'dangerous' prisoners for longer doesn't resolve any of their issues once released; it does keep them out of the community – therefore reducing their chance to offend in the short/medium term. So in the most elementary of senses, it absolutely does get the worst criminals off the streets."

    Indeed and now only Preventive Detention remains for the worst reoffenders … rather than serving the full term imposed by the Judge in each case.

  11. I have been against "Three Strikes" from the day it was enacted (and prior to that). I practise in criminal defence as well as other areas of the law and I had to contend with people facing various strike offences. It took some time for the more obnoxious aspects of the law to filter through as the first strike did not actually cause any substantive injustice, but the second strikes sometimes did, and I need hardly mention the third strike, which was in virtually every case contrary to justice.

    The sentencing process is often misunderstood by the public. Courts are required to follow the law and the principles are set out in the Sentencing Act 2002. There is a relatively formulaic approach to sentencing exercises: a starting point for the offending is identified, uplifts are considered for aggravating features or for the defendant's previous hisory, then discounts are given for mitigating factors, the most common of which are early guilty pleas and remorse, although backgrounds of deprivation disclosed through cultural reports can be helpful as well.

    For most categories of serious offending, sentencing tariffs were set by regard to "guideline judgments" from the Court of Appeal, so that, for example, in cases of serious violence, drug dealing or sex offending the sentencing court can look at the relevant guideline case, determine which band is appropriate and proceed from there to set a starting point. Some offending does not fit neatly within this rubric, for example, fraud, as the variety inherent in fraud is so extensive as to render any attempt to reduce it to a checklist of factors meaningless.

    Three strikes trampled upon all of this. There was no incentive for early guilty pleas, as no discounts were possible for them. There were cases where plea negotiations resulted in a strike offence being amended to a non-strike offence. A good example of the latter was when the charge was wounding with intent to injure (a strike offence which carries a maximum penalty of 7 years imprisonment), where injuring with intent to injure could be laid instead (a non-strike offence with a maximum penalty of 5 years imprisonment). This distortion of prosecution decisions is also contrary to the interests of justice but at least conformed better to justice than the three strikes regime.

    Thank God it has gone. Three strikes worked on false assumptions: that those who were subject to the regime could be deterred by the threat of ratcheting up sanctions for repeat offending and had the cognition to recognise the peril that lay in their actions. In reality, many of those subject to its provisions were illiterate, addled by drugs, acted impulsively and did not even understand the strike warnings they were given.

    The Courts, acutely aware of the constitutional hierarchy, worked within the law, but many judges passed comment on the unfairness inherent in the system. I recall a case where a man who had his IQ formally assessed as 51, but who had somehow managed to live independently and even obtained employment, was charged with indecent assault, which should never have been a strike offence. The problem was that he had done it before. The Judge was very concerned, as I was, about the problem that would arise if his behaviour, which was annoying rather than harmful, were to be repeated, and tried to persuade police to lay a lesser, substituted charge. As it was his second strike, he received a supervision sentence, but had he done it a third time, he would have faced seven years imprisonment for indecent assault. That is the fate that befell Daniel Fitzgerald (as mentioned in the article) for an unwanted kiss. Was that really an example of the "worst of the worst" whom, we were told, needed to be locked up for the protection of the public?

    • Belladonna 11.1

      That is the fate that befell Daniel Fitzgerald (as mentioned in the article) for an unwanted kiss. Was that really an example of the "worst of the worst" whom, we were told, needed to be locked up for the protection of the public?

      Probably not. And it's indicative of the issue with 'indecent assault' being such a wide-ranging crime (everything from an unwanted kiss, right up to just short of rape). I think that many people recognized that this was a potential issue with including it as a strike offence. However, excluding it, would have resulted in most sex offenders not falling under the 3-strikes provisions, which was also inequitable.

      I note that you are not listing the really serious crimes – where there would be little argument from the public that the offender needs to be out of the community for as long as possible (I've repeated the example I gave earlier)

      The tendency for courts and sentencing judges to do everything in their power so as *not* to list something as a strike offence, and/or not impose the legislated strike penalties, has also been very evident.

      This for example:

      Where he'd been convicted of 3 serious assaults in 3 years (god knows how many he'd actually carried out). His 3rd strike was a violent and prolonged assault on his partner while she was asleep.

      The judge decided that the 3 strike penalty (14 years without parole) was manifestly unjust, and determined to sentence him to 5 years, 2 months – which means he's out in just over 2 years (probably less, if time on remand is counted).

      [NB: I'm quite certain that your low IQ client would also have had a judge deciding that a 3rd strike sentence was 'manifestly unjust']

      Activist judges have been undermining 3 strikes ever since it was implemented.

      National have already announced that they will re-instate 3 strikes when they are next in government. Every 'strike' case coming to court from now on, will encourage popular support for them.

      There were always 2 strands in the 3-strikes legislation. 1st to educate those that can learn (through escalating penalties). 2nd to lock away those that can't or won't learn, for the maximum period, so as to protect the community.

      With the current wave of crime sweeping across NZ (that's the popular perception) – this adds to the public perception that Labour is soft on Crime.

      • Drowsy M. Kram 11.1.1

        Blood bath from hell’: Inmates at private prison tell of suicides, allege negligence amid Covid outbreak [9 March 2022]

        Best to build more (SERCO-run) Corrections facilities then, or will crates do?

        Three strikes is populist policy (throwing the voters a little red meat), but it's a failed and relatively expensive 'ambulance at the bottom of the cliff' anti-crime strategy. No wonder progressive judges don't favour of it – there are better options, imho.

        Every year we take broken people and turn them into angry broken people.” – Sian Elias GNZM PC QC, Chief Justice of New Zealand

        “Repeal the Sentencing and Parole Reform Act 2010 commonly known as the three strikes law.”

        Ideally NZ should be planning how best to (at least) halve our prison population rate (~150 prisoners per 100,000 population) so that we more closely resemble Ireland (83), Denmark and Switzerland (72). Sweden (70), Germany and the Netherlands (66.5), Norway (56), or even Finland (51) and Iceland (41).

        NZ invests a relatively high % of its GDP in education compared to most OECD countriesmaybe the absolute amount could be increased and/or better targetted to provide more improvement pathways/opportunities for the disadvantaged.

        • Belladonna

          You can argue as much as you please, and I'll support you, for effective intervention at the beginning of the criminal trajectory. Especially for interventions pre-crime – for those kids/young people who everyone can see are hugely at risk.

          Please note, that school attendance, which is widely tipped to be one of the biggest factors in keeping kids out of crime (cf Celia Lashlie) – has plummeted drastically over the last few years. And solutions from the government appear to be nowhere. This (and in youth crime court interventions and monitoring) is where they need to put their investment.

          But, how about we don't start with shortening sentences for the worst criminals. It's bound to blow back. And will tar the whole programme with the front-page smears of failure.

          Halving our prison population *will only work* if we have effective interventions to enable the criminals to turn their lives around.

          Newsflash! We don't.

          Mental health services are in acute failure (friends and family at the sharp end of this one). Drug (and other substance abuse) rehabilitation programmes are virtually impossible to access. Housing is in critical shortage. Basically everything needed for wrap-around services is either critically overloaded or missing altogether.

          Putting that in place, and targeting 'beginning' criminals, is where the Government should be starting.

          • Drowsy M. Kram

            You can argue as much as you please, and I'll support you, for effective intervention at the beginning of the criminal trajectory. Especially for interventions pre-crime – for those kids/young people who everyone can see are hugely at risk.

            Excellent, thanks – youth who “are hugely at risk” should definitely be a priority.

            Halving our prison population *will only work* if we have effective interventions to enable the criminals to turn their lives around.

            Newsflash! We don't.

            Putting that in place, and targeting 'beginning' criminals, is where the Government should be starting.

            Absolutely, but difficult to 'sell' these commonsense strategies, as advocated by the Green Party of Aotearoa New Zealand, in a populist political environment where it’s easier to offer voters some “good old boy tough on crime” red meat.

            Three strikes law gone but not forgotten for many [9 August 2022]
            Fixing the justice system doesn’t stop at three strikes. Labour must now show courage in moving toward a system that addresses the causes of offending, including mental healthcare, addiction treatment, housing and liveable income support, while introducing a new pathway away from prisons,” says Golriz Ghahraman.

            • Belladonna

              Well, it appears that Labour have done neither.
              They've abandoned the 'red meat' approach of tough on crime; and not invested in actually implementing effective rehabilitation strategies.

              The worst of all worlds.

              • Drowsy M. Kram

                So is any NZ political party (apart from the Greens) advocating for the commonsense progressive strategies that you and I strongly support?

                Any idea what sort of track record the fifth National government (2008 – 2017) had re tackling the root causes of crime? Or ACT – is there any hope?

                • Belladonna

                  I doubt it.

                  National and, to a greater extent, ACT, are firmly in the 'red meat' camp.

                  There's no denying that longer sentences keep the serious and violent criminals out of the community (and away from potential victims) for longer. It is an effective (for a given definition of effective) strategy.

                  Rehabilitation, with well-funded wrap-around services (as you quoted from the Scandinavian examples) – and advocated by the Green party is also an effective (for a different definition of effective) strategy.

                  Labour is following neither strategy.

                  • Drowsy M. Kram

                    Labour is following neither strategy.

                    Surprising opinion coming from you. The ‘red meat’ brigade (NAct) clearly have a regressive track record, the Greens are clearly progressive, and Labour is endeavouring to chart a politically pragmatic middle path.

                    [13 July 2022]

                    Repealing the three strikes law is a progressive reform, imho.

                    Every year we take broken people and turn them into angry broken people.” – Sian Elias GNZM PC QC, Chief Justice of New Zealand

                    “Repeal the Sentencing and Parole Reform Act 2010 commonly known as the three strikes law.”

                    • Belladonna

                      Not sure why you think that.

                      Labour is *clearly* invested in shortening sentences (i.e. not following the 'red meat' strategy); but I've yet to see any evidence that they are investing significantly in rehabilitation. [If you have it, please link]

                      So, they've lost the 'benefit' of communities being protected from violent criminals (by letting them out of jail earlier); but haven't done anything significant to protect the community by rehabilitating those violent criminals.

                      Hence, I think it's a lose/lose strategy.

                  • Drowsy M. Kram

                    Not sure why you think that.

                    Maybe it's just words, but reckon Labour's heart is in the 'right' place. The location of NAct’s ‘heart’, otoh, has always seemed a bit dodgy, but that’s probably just me.

                    Steering Kiwis away from crime [from the link at 3:41 pm]
                    We’re also working hard to address the drivers of crime, reduce offending and stop young people becoming gang members in the first place. We know people don’t become gang members overnight, and that the causes are complex and often intergenerational.

                    We’ll continue to do more on intervention and prevention, and we’re undertaking further work focusing on the youth justice system, in particular around improving the lives of at-risk young people and public safety over the long term.

                • Belladonna

                  I'd say that any hope of effective action, with a right-wing government, would need to hinge on cost-benefit.

                  If you can demonstrate that it is cheaper (as well as effective) to provide wrap-around rehabilitation – then the Government is likely to be very interested.

                  Hence my questions about effective trials, with long term results.

                  The ones I've seen, pretty much had zero effect, after 3 years. So, there was a short term reduction in crime, with lots of intervention; but once the intervention stopped, the criminal patterns of behaviour re-appeared (statistically speaking, of course).

                  Much more likely to see RW support for change happening at the entry-to-the-court system, rather than the third strike offenses. RW tend to believe that by the time they've got that far, they're pretty much entrenched criminals, and the only thing that will cure them is time (hitting 70 tends to slow down most criminals).

                  • Incognito

                    Instead of reckons in and by MSM you could start with reading reports and evidence, and there’s plenty of good material that counters the RW populist propaganda that’s feeding your so-called public perception.

                    For example:

                    As per the standard definitions of evidence strength outlined in our methodology, the interpretation of this evidence rating is that:

                    • there is conflicting evidence that interventions can reduce crime
                    • it is highly uncertain whether the investment will generate a return even if implemented well


      • Philip Ross 11.1.2

        It has been interesting for me, as a lawyer practising in criminal defence, amongst other areas of the law, to observe the disconnect between the public perception of crime and reality. Twelve to fifteen years ago, I recall that there were around 5,000 police prosecutions every year in the Napier District Court. The precise number is quite easy to determine as each criminal charge has a unique number given to it, the "criminal record number" or CRN, of which the first two digits are the year, the next block of three digits identifies the court, the following digit identifies the prosecutor (0 for an adult charged by the police, 5 for most other prosecutors) then there is a block of five digits which rolls over to 1 at the commencement of each new year; accordingly, the CRNs towards the end of the year are a record of how many charges have been laid. There are now just over 3,000 a year.

        I acknowledge that there are factors other than a drop in the crime rate, and not all offending has shown equal trends. However, there has actually been a decrease in criminal offending, not an increase, although the public perception is the exact opposite.

        As for the repeal of "three strikes" leading to softer sentences or an increase in crime, what must never be forgotten is that the court can impose the maximum sentence in any given case where the fact scenario, aggravating factors and lack of mitigating factors so require. We saw precisely that happen to Brenton Tarrant, who received a whole of life tariff with no possibility of parole, even though he had no prior criminal history. Three strikes advocates who claim that this will result in people who should be locked away not being locked away are being dishonest. A person sentenced to a long determinate sentence, that is, more than two years imprisonment, must serve one third before being considered for parole. There is no guarantee of parole at any time, and a prisoner can and sometimes does serve the whole sentence in prison.

        Even if granted parole, and there is a legal test to meet before parole can be granted, a person can be recalled at any time, even for behaviour which does not amount to an offence.

        It does not help that people pontificate about "criminals" without having even the slightest idea what they are talking about. The drivers of crime are not a lack of deterrence but rather, poverty, deprivation, domestic violence, drug abuse, lack of opportunity and lack of education. Evidence-based policy looks at what works rather than what is popular and that leads to rehabilitative sentences which are far more effective than the "lock them up and throw away the keys" approach,

        • Belladonna

          "I acknowledge that there are factors other than a drop in the crime rate, and not all offending has shown equal trends. However, there has actually been a decrease in criminal offending, not an increase, although the public perception is the exact opposite."

          Well, first off, prosecution numbers have little to do with the actual crime rate. And, I suspect, strongly, that a very significant part of the drop in prosecution numbers, is driven by the police not even investigating crimes. As well, as the fact that the length of trials has blown out massively over the last 15 years – part of why it’s now taking more than 3 years for routine cases to get to trial.

          There is continual discussion on community pages, where the police are handed video evidence of criminals, complete with identification (name and address- and sometimes even bank account number for fraud), and the police decline to follow up.

          I do not know of one single person (in Auckland, at least) who believes that crime rates are dropping. And, violent crime is absolutely increasing – I've lost count of the shootings reported this year – and just yesterday someone was carjacked at gunpoint.

          Certainly, friends working in Women's Refuge tell me that it is much, much more difficult to get women to lay a complaint (it's never been easy, but it's much harder than it used to be). They know that the courts will take years to hear the case, they will be crucified in court by the adversarial system (as a lawyer, you'd know exactly what that is like), their assailant will be free to indulge in whatever intimidation and/or retribution he (and it almost always is 'he') wants to in the meantime, and any penalties finally imposed will be laughably light.

          As, I said above, I'm all for rehabilitation of criminals – but strongly suggest that you start at the beginning of the court system – those coming up for the first time, rather than the end (the worst of the criminals).

          And, I've yet to see any significant 'evidence-based' change in this rehabilitation area being rolled out by the government (or even existing services appropriately resourced). Perhaps you could link to any significant initiatives in this area, and their success rate in preventing re-offending.

          It seems much more likely that the only thing that will change is the length of the sentence.

          Pontification? Really? That sounds so patronizing. When I refer to "criminals", I mean people who have been convicted of a crime (usually a serious crime). The ordinary English usage. Or, are only the elite allowed to have an opinion.

          Just wondering where you think the victims fit into all of this? Or, don't they matter….

        • Chess Player

          Fewer offenders being prosecuted is not proof of fewer crimes being committed.

          And given the root causes of crime such as poverty, lack of education, etc have not been improved, and have worsened, one could reasonably expect that more crime is being committed, even if never prosecuted.

          • Incognito

            Use the following link, select the best crime stat that most suits your narrative and report back to us here. Until then stop waving your dick around like a toddler who’s had too much sugary fizzy drink.


            • Chess Player

              The link shows Reported crimes, not prosecuted or convicted.

              But you knew that – maybe try harder.

              • Incognito

                Where's yours? What 'crime stats' do you produce other than the ones in your head? Stop your willy waving and try make a genuine contribution or STFU.

              • SPC

                Fatal logic failure results in checkmate.

                You argued fewer prosecutions did not mean less offending.

                Evidence was produced to show that fewer crimes were being reported.

                Thus your imagined greater offending has no supporting evidence.

                The link was the one pertinent to refuting your claim.

                You have made a hypothesis, as to why crime would increase (the 501's alone would do this), but it requires some evidence to be anything more.

      • Philip Ross 11.1.3

        I remember reading the judgments in the early third strike cases. I was interested to see if the claims that these were the "worst of the worst" actually stacked up. Predictably, they generally did not. The first "third striker" faced a third strike offence of indecent assault, because he pinched a corrections officer's bottom! Annoying behaviour but hardly the stuff one would associate with the "worst of the worst."

        The Courts already can deal with truly irredeemable hardcore criminals. It is not because of "activist judges". The New Zealand judiciary tends to be cautious and very conscious of the constitutional sovereignty of parliament. If you are going to comment on sentencing trends you really need to read the decisions and have available the facts that were available to the sentencing judge. Unfortunately, I have seen media reports about some cases of which I have personal knowledge which were grossly inaccurate.

        I recall, as an example, a spokesman for the Sensible Sentencing Trust rushing into the media about a case of which I had knowledge, as indeed, I was in Court while the woman concerned had been sentenced. Accordingly to the SST spokesman, she should have been jailed, as a drug dealer who allowed her child to ingest cannabis oil then hid that fact from the authorities. The facts were a considerable distance from this narrative. She was not a drug dealer. The child did ingest some cannabis oil and her associates were concerned about going for medical attention, despite her wish to do so, because of their involvement in illegal activities. However, eventually they did. She received a rehabilitative sentence, of supervision, a perfectly reasonable and sensible sentencing outcome, aimed at assisting her overcoming her addiction rather than a retributive sentence that would not have benefited her child at all, and which would likely have led her deeper into criminal associations and offending.

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