Legal Beagle: David Garrett wins
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So, is the shift from "life with a non-parole period of 25 years" to "maximum sentence with no parole" sufficient to overcome the A-G's BORA concerns about disproportionate punishment?
A life sentence with no possibility of parole for a drink-driving causing death 30 years after a conviction for a drunken groping that resulted in no jail time, and 18 months for being a party to an aggravated burglary for driving someone to and from the scene of a burglary they conducted on an empty office while carrying a crowbar?
Yeah ... that's not disproportionate at all.
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Yeah ... that's not disproportionate at all.
I wonder if in some manslaughter cases this is going to weigh heavily on juries, who may be reluctant to convict if the consequences of a guilty verdict are pointed out to them.
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I wonder if in some manslaughter cases this is going to weigh heavily on juries, who may be reluctant to convict if the consequences of a guilty verdict are pointed out to them.
I'm not sure if it's part of the legal philosophy here or anywhere else, but it seems that keeping the guilty/not guilty (jury) apart from the sentence (judge), particularly in serious crimes, seems like a good thing to me. The jury can keep its eye on its job of "did this person do this crime" without worrying about "but that will mean XX for them", which still seems to me to be something that judges are best qualified to decide within broad constraints.
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So, is the shift from "life with a non-parole period of 25 years" to "maximum sentence with no parole" sufficient to overcome the A-G's BORA concerns about disproportionate punishment?
I believe the lightest sentence for manslaughter given in NZ in recent years was 300 hours of community service. For a chap who'd been negligent in doing maintenance work on a helicopter.
I've no reason to that chap had, 30 years earlier, been convicted a couple of times for being party to office burglaries when a stupid youth. But suppose he had.
In that case a sentence which a judge thought should have been 300 hours community service would have become life imprisonment without parole.
Disproportionate? What do you think?
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Not burglaries, but aggravated burglaries.
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All these disproportionate effects could easily be stopped by a sensible judge having the leeway to decide the sentence, which is what we currently have.
Why do they need to introduce a 3 strikes law for anything other than propaganda, when they could easily just ask (or failing that, legislate) judges to give more weight to prior offending when sentencing.
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It's already under fire from the judiciary:
http://www.stuff.co.nz/national/crime/3246736/Judge-criticises-three-strikes-policy
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It's already under fire from the judiciary:
Did anybody hear Peter Williams QC on the wireless this morning. He appeared ready to strangle Garrett and risk his first strike.
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Can you explain this? -
3. limiting strikes to offending punished in the indictable jurisdiction – if offending is serious enough to count as a strike, the prosecution and courts should treat it seriously.
I don't understand it.
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It's already under fire from the judiciary
If only the judge had read the bill, or the changes, he'd know his concerns were misplaced. Burglary is not a strike offence.
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I don't understand it.
Certainly. Offences can be proceeded against in two different ways in New Zealand - indictably, and summarily. The indictable jurisdiction is for more serious crimes. The most serious crimes have to be heard indictably. Minor offences are all heard summarily. A bunch of offences in the middle can be done either way (either party can elect to place these offences in the indictable jurisdiction).
The summary jurisdiction has fewer safeguards than the indictable jurisdiction. It still provides a fair process, but for example, there aren't preliminary hearings, you can't challenge the admissibility of evidence before trial, and there are no juries. As a trade-off, a judge's powers in the summary jurisdiction are not as extensive - the maximum sentence that may be imposed in the summary jurisdiction is 5 years imprisonment - even if the maximum sentence for the offence is 7 years or higher.
When a offender is proceeded against in the indictable jurisdiction, everyone takes it more seriously. The actual sentences imposed are usually higher (even for identical offences), and the process has even more formality.
Given the consequences of strike offending, my suggestion is that all strike offences should be run in the indictable jurisdiction. Or perhaps that if someone is convicted of a strike offence that the police have decided to lay summarily, that that is in indication that even the police don't think it is particularly serious, and it therefore shouldn't count as one of the serious crimes for which strike consequences apply.
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Preventive detention is just a way of giving life sentences to those who commit offences that don't carry life sentences.
Most people don't understand this, even some law students (such as a former flatmate).
If more people "got" that PD already allows judges to send recidivist violent/sexual offenders away under the same terms as a murderer's life sentence, it might quench some of the blood lust that our society has going on. Or maybe not, given the comprehension skills of the average MOTP.
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Graeme, is there a schedule of offences that can be tried summarily? Or is it based on the maximum sentence?
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Matthew - yes there is. The following offences are triable summarily:
1. those that say they are.
2. those that say they are triable indictably, but which are listed in schedule 1 of the Summary Proceedings Act.
Of the 36 offences covered as strike offences, the following are triable indictably (numbers are sections of the Crimes Act):
131(1) Sexual connection with dependent family member
131(2) Attempted sexual connection with dependent family member
134(1) Sexual connection with young person under 16
134(2) Attempted sexual connection with young person under 16
134(3) Indecent act on young person under 16
135 Indecent assault
138(1) Exploitative sexual connection with person with significant impairment
138(2) Attempted exploitative sexual connection with person with significant impairment
198A(2) Using a firearm to resist lawful arrest or detention
198B Commission of crime with a firearm
234 RobberyIt is not based solely on the maximum sentence. Robbery has a maximum of 10 years, but can be proceeded against summarily. Wounding with intent to injure, and aggravated injury - both with 7 year maximums - must be tried indictably.
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Graham, did you mean triable summarily? Coz from that list I see missing murder, manslaughter, unlawful sexual connection, various crimes with "aggravated" in the name...
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did you mean triable summarily?
Yes I did.
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This a wonderful, horrible, but enlightening thread: thanks v. much Graeme Edgeler, et al-
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I blame Kim Workman. Had he not gotten smart with his Official Information Act requests – the ones that found that the version of three-strikes introduced would have saved precisely none of the lives ACT were trumpetting prior to the election...
Are these new claims then?
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Some history.
It seems important to me to acknowledge that the pendulum has swung quite dramatically towards the punishment end of the spectrum. In state initiated research through the 80s and 90s, including the Roper Report, it was acknowledged that neither 'punishment' nor 'treatment' alone would resolve the problems associated with serious violent crime, particularly domestic violence, which made up an estimated 80% then, and I believe is similar now.This also from the Duluth to Hamilton section;
The FVPCC realised that a change in arrest policy alone would not dramatically reduce reoffending. Overseas experience had shown that until 'formal, compulsory education programmes were introduced and the system of dealing with offenders is structured to ensure that the community response is always consistent, a significant reduction in the reoffending rate does not occur'. (Smith 1991:51).
At least one who worked on the Roper Report, after trying to change the system from within, threw up his hands and went in to the prisons, where he helped develop a mentor programme to break the cycle of violence amongst some of our toughest gangs. It didn't work in every case, but it did in some, and the long term benefits, and reduced costs of this approach far out-way the prospect of locking them all up and throwing away the key, IMhO.
Perhaps proper funding and support for these programmes would also have prevented the deaths mentioned in that inflammatory article. If we declare them all as 'hopeless cases', inevitably that's what they will become. I would not be proud of a nation that takes the American approach to problems they are too incompetent, or without much of a stretch, too bigoted to address in more 'holistic' terms. And yet here we are.
From Campbell article, which I just read. Brilliant, thanks Lyndon.
As an aside, the policy demonstrates the Act Party’s primitive view of how society actually works. With crime as with the economy, the Act Party treat society as being merely an aggregate of individuals, a gaggle of rational actors singly making rational choices on a cost and benefit basis. It is the worldview of a 14 year old. What it allows Act to do is ignore social factors altogether – and the fact that different people face differences of wealth, health, opportunity and access to resources that significantly affect the choices they make, or can make.
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James W - I think Workman was using National's old version and this is re: the current one. (?)
That 'people who would be alive' argument is pernicious anyway. To make it work you have to calculate who is now alive that would be dead and compare them. Plenty of room for argument, not going to happen anyway.
Here's an angle I hadn't seen before (c/o comment on http://gordoncampbell.scoop.co.nz/2010/01/20/gordon-campbell-on-three-strikes-sas-in-kabul/):
Will encourage people to plead not guilty, particularly in third strikes. (Not that we have a wealth of guilty pleas in such cases now.) 'More sex crime victims on the stand'.
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PS if the submission process clears up some of the new idiocies Graeme mentions, I might start suspecting a(nother) pattern. Propose doing something nasty in a daft way; listen; do it in a sensible way; everyone's a bit relieved.
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What I find interesting is that the examples that Act gives date from 1986 to 2001. This implies that with the tightening up of parole, there have not been more recent cases, so the 3 strikes law is not actually required (it seems to date from the '80's - much like the rest of Act's policies).
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If only the judge had read the bill, or the changes, he'd know his concerns were misplaced. Burglary is not a strike offence.
I can't speak for the judge, but he mave have been trying to use non-technical terms to communicate with the notoriously ignorant public.
When I commented earlier I used "burglary" as a generic, with a vauge idea that aggravated burglary is just burglary with extra sauce.
So what is the legal distinction that makes a burglary an aggravated burglary?
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Aggravated burglary = offender has a weapon.
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offender has a weapon.
Which leads to the question "what does the legal system define as a weapon?".
I know a crowbar counts from what Graeme has said
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