Legal Beagle by Graeme Edgeler

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Legal Beagle: David Garrett wins

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  • Graeme Edgeler,

    Just kicking it over to System.

    As an aside, anyone got any idea why the minister in charge of the sentencing and parole reform bill had nothing to do with this announcement?

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • George Darroch,

    Leave the law as it is. Make them* suffer.

    *The general public, who vote for such stupid policies, and will see higher crime rates and spend many millions more on pointless prisons.

    The People's Republic of … • Since Nov 2006 • 2118 posts Report Reply

  • Tristan,

    thats the problem with 3 strikes, no one cares what happens on the first two even though they have massive implications on the third. what happens if you are inside for life on your third strike and one of the first two strikes are over turned?

    do you get re-sentenced?

    Auckland • Since Nov 2006 • 193 posts Report Reply

  • Martin Roberts,

    What happens if your third conviction is for a crime committed prior to your previous convictions? Say you have two strikes already, then get done for child molestation from twenty years before. Anybody know?

    Auckland • Since Nov 2006 • 88 posts Report Reply

  • Rich of Observationz,

    I'd accept it all if they'd just make "breach of suppression order" a strike.

    Back in Wellington • Since Nov 2006 • 4355 posts Report Reply

  • Sacha,

    That'd be a shame

    Ak • Since May 2008 • 16262 posts Report Reply

  • Graeme Edgeler,

    Anybody know?

    Yes.

    It won't count as a strike. Indeed, "strike" is somewhat of a misnomer. What happens is that when someone is first sentenced for a serious violent or sexual offence (committed after the law has entered into force), the Judge formally warns them and enters a first warning on their record.

    If they are later sentenced for a further serious violent offence, which has been committed after the first warning was received, the judge formally warns them again and enters a final warning on their record..

    If someone comes up for sentence on a further serious violent offence, committed after a final warning was received, only then do third-strike consequences kick in.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Paul Campbell,

    I'm just pissed we have to use an american sports metaphor what happened to "6 balls and you're over"?

    Dunedin • Since Nov 2006 • 2030 posts Report Reply

  • Graeme Edgeler,

    what happens if you are inside for life on your third strike and one of the first two strikes are over turned?

    do you get re-sentenced?

    It wouldn't be automatic, but an application for leave to file a late (or second) appeal would likely be looked upon favourably.

    I would note, however, that a life sentence is no longer the consequence of a third strike, rather, the maximum applicable sentence, to be served without parole, is the consequence.

    If your third strike is rape, you get 20 years. If your third strike is indecent assault, you get 7 years.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Sacha,

    what happened to "6 balls and you're over"?

    Excalibur

    Ak • Since May 2008 • 16262 posts Report Reply

  • Graeme Edgeler,

    "6 balls and you're over"?

    But before you get that far, it's four balls and you walk... you could never sell that to the law and order crowd.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Sacha,

    Enough trouble counting to 3

    Ak • Since May 2008 • 16262 posts Report Reply

  • Graeme Edgeler,

    I'll probably tire of this quite quickly - because I have a feeling this will happen a lot over the next days, but I'm going to be fact-checking the media over their reporting of the bill and this announcement in the comments to this thread.

    Factcheck 1: Stuff article

    Claim: Repeat violent offenders will not be eligible for parole after their third offence, the Government has this afternoon announced.

    Misleading:

    1. It's serious violent and sexual offending, not all violent crime.
    2. It's after the first offence, not the third. First serious violent offence - you qualify for parole; second serious violent offence - no parole.

    Claim: Only people over 18 would be subject to the three strikes law, and offences to be counted as a strike would have to be punishable by a sentence of five years or more.

    Misleading. The offence has to be from a specified list. That list only includes offences punishable by sentences of seven years or more. But it doesn't even include all of them.

    Claim: The original proposal had been to punish a third offence with a life sentence but this was dropped in favour of the mandatory maximum sentence.

    Pretty much accurate, but it is important to note that regime in the bill as introduced only applied where the actual sentence imposed would have been five years or more. Even a conviction for a really serious offence like manslaughter wouldn't have counted as a strike, if, like for Bruce Emery, the sentence imposed was for less than five years.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Graeme Edgeler,

    Factcheck 2: TVNZ

    Claim: the government is pushing ahead with a new law that will see offenders caught committing the same offence three times spending much more time in jail.

    Misleading:

    1. The law doesn't just apply across the same offence, an offender committing different offences from the list of serious offences in the law is also covered.

    2. It's not just those committing three offences who will be spending much more time in jail. On the second qualifying offence, the offender loses eligibility for parole. This will add 50%-200% more prison time for most offenders.

    Claim: [quoting John Key] "We want to see the worst repeat offenders held to account".

    Arguable. This proposal holds to account all repeat offenders of crimes defined as serious (some of which, depending on circumstances, aren't serious). The bill as originally introduced was much more targeted at the worst offenders.

    Claim: The "three strikes and you are out" bill was Act's idea but it has not been able to get the numbers to push it through because of concerns it was too harsh, so it has been softened up and is now called the "three strikes and get the max" law.

    It means three times repeat offenders will spend the maximum time allowable under law without parole in prison.

    Act's original version of the law would have seen all those offenders sent to jail for at least 25 years.

    Misleading:

    1. the "bill" (I assume they're talking about the one that was introduced) was not really ACT's idea, but was itself a substantially watered down version of ACT's original idea.

    2. The policy announced today is less harsh than that first introduced for only a small subset of repeat serious violent offenders. For the vast majority of repeat violent offenders today's policy is far far harsher.

    3. ACT's original version (i.e. their pre-election policy) applied to a different subset of repeat offenders - including fewer sexual crimes (e.g. ignoring attempted rape, but still including indecent assault) and more violent crimes, including those with maximum sentences of less than 7 years, such as smacking.

    Claim: The new version is significantly watered down. It will only affect those committing 36 of the most serious crimes ranging from sexual violation to murder.

    Misleading:

    1. ACT's pre-election proposal only covered 19 offences.

    2. The bill as introduced only covered offending that would actually have resulted in a five year sentence. Removing that means this isn't watered down so much as strengthened for the vast majority of repeat violent offenders.

    3. The serious crimes do not range from sexual violation to murder. Only three of the crimes on the list are in that range: sexual violation, manslaughter and murder. The serious crimes range from indecent assault/injuring with intent, to murder.

    Claim: [paraphrasing Labour] Labour is sceptical the new law will have any real effect as they say it has been watered down so much it is really just a face saving exercise for Act.

    Labour should actually read the proposal. The new proposal is far harsher for the vast majority of repeat serious violent offenders than the original bill.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Graeme Edgeler,

    Factcheck 3: TV3

    Claim: The 'three strikes' change will go to a select committee and the public will be allowed to make submissions - but with ACT and National both supporting it, it will become law.

    Slightly inaccurate. Judith Collins has said: "I will be writing to the Committee to advise them of the proposed changes and inviting them to seek further written submissions from those who previously submitted on relevant aspects of the Bill."

    So I'll probably get a say, but much of the public - and perhaps even a majority of submitters from the the first round at the select committee - won't get any further opportunities for direct input into the Parliamentary process.

    Claim: ACT campaigned on its hard-line against repeat offenders, which will see those convicted of a third serious violent or sexual offence get the maximum penalty - even if it is life with no parole. Judges won't have discretion.

    Second-time offenders won't get parole either, but they won't necessarily get the maximum jail time. How long they serve will be up to the judge.

    Well done TV3. Just stating what the proposal does paid off for you in the fact-check stakes.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Graeme Edgeler,

    Factcheck 4: NZPA via the NZ Herald

    Claim: The Government is getting tougher on repeat violent criminals as National and ACT parties have announced an agreement on a three-strike policy today.

    The policy, announced by Prime Minister John Key, ACT leader Rodney Hide and Police and Corrections Minister Judith Collins, will be incorporated into the Sentencing and Parole Reform Bill, ensuring repeat criminals get the maximum allowable sentence.

    If passed into law, an offender would receive a standard sentence and warning for the first offence, a possible jail sentence with a second sentence, and with a third offence he or she would receive the maximum penalty in prison for that offence, rather than a life sentence with a minimum period of imprisonment of 25 years as originally proposed.

    Slightly misleading. The title and opening paragraph mention violent offending, but the rest of the article ignores this.

    The law doesn't cover all offending, or even all violent offending, only offences against a set list of crimes, all of which are punishable by maximum sentences of at least 7 years. Other crimes, including lesser violent crimes, like common assault and aggravated assault, don't count toward the regime.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • st ephen,

    I'm just pissed we have to use an american sports metaphor...

    Pissed off , surely? ;-)

    dunedin • Since Jul 2008 • 193 posts Report Reply

  • DeepRed,

    Three strikes? More like the match was thrown.

    The southernmost capital … • Since Nov 2006 • 4056 posts Report Reply

  • Bart Janssen,

    the maximum applicable sentence, to be served without parole, is the consequence.

    And this is what has pissed me off about this whole debate. It is the idea that some ill-educated ill-informed politician is allowed to tell a knowledgeable experienced judge how to best do the job.

    Why in any semblance of a sane universe do we let the dickheads who nothing about a particular case decide how best apply the law?

    /insert sound of frustration followed by head banging on keyhw g gba-

    Auckland • Since Nov 2006 • 3209 posts Report Reply

  • Sacha,

    Because for years judges seem to have given sentences well below increasing maximums, thus ignoring the sentencing intent of the parliamentarians whose job is to set the law for the courts to apply. Don't necessarily agree with the content, but the backlash is hardly a surprise if you look at it from the pollie's perspective.

    Also exacerbated by the "daddy knows best" tendencies of the current bunch voted for by our fellow citizens and approved in opinion polls. It seems we like being told what to do. Just by daddy not mummy.

    Ak • Since May 2008 • 16262 posts Report Reply

  • Tony Parker,

    Why in any semblance of a sane universe do we let the dickheads who nothing about a particular case decide how best apply the law?

    Because this administration doesn't want to or won't listen to the experts/people who are doing the job and are at the coalface so to speak.
    The above sentence could equally be...

    Why in any semblance of a sane universe do we let the dickheads who nothing about education decide what's best for children?

    Napier • Since Nov 2008 • 232 posts Report Reply

  • Graeme Edgeler,

    I'll probably tire of this quite quickly - because I have a feeling this will happen a lot over the next days, but I'm going to be fact-checking the media over their reporting of the bill and this announcement in the comments to this thread.

    Actually, I pretty happy with the coverage today.

    If only Kim Workman would stop telling people that this change is an improvement over the form of the bill that was introduced, we might be able to work toward that informed populace.

    This argument doesn't usually work, but on this occasion I think it probably does: if David Garrett thinks it's an improvement, and Garth McVicar thinks it's an improvment, then Kim Workman probably shouldn't.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • FletcherB,

    I'm just pissed we have to use an american sports metaphor

    Theres no reason for it not to be a kiwi sports metaphor as well...

    Sure, we like to think we dominate the world in Rugby.... we actually demonstrably DO dominate it in Softball.

    West Auckland • Since Nov 2006 • 786 posts Report Reply

  • andin,

    Also exacerbated by the "daddy knows best" tendencies of the current bunch voted for by our fellow citizens and approved in opinion polls. It seems we like being told what to do.

    I despair when I know that most of those people were born in that post war daze dubbed the baby boom. And were supposed to be the generation that would make a break with the past.
    The conditioning was to strong and daddy was always at work, or sleeping "work " off.
    So most of them took the first opportunity to stuff their bank accounts, cry poverty, and turn their back on any thing resembling a principle so they could fret and dote over their offspring.
    Which brings us to the present.

    raglan • Since Mar 2007 • 1155 posts Report Reply

  • Sacha,

    It has to be deeper than that, or young people wouldn't be voting for them as well

    Ak • Since May 2008 • 16262 posts Report Reply

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