Legal Beagle: Three strikes (w/ updates)
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Graeme, righto then substitute in manslaughter in place of aggravated assault in my point. 2 acts of pedophilia, then manslaughter, doesn't really hint at a pattern, where it may for 3 consecutive manslaughters, particularly if they're done in very similar ways.
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Especially if they're brothers, and they end up in the same prison ;-)
Now, now, we promised Emma we wouldn't go there again.
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Ben, certainly you're right about the pattern, but you should also remember that it's two acts of paedophilia serious enough to warrant a five year prison term (on separate occasions). It doesn't deal with the pattern issue, but it does slightly mitigate the injustice.
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Thanks for the info Graeme. I find myself siding with your view that it's not as horrifically stringent as some when put in practice but still have issues with the basic justice of that third strike.
I'm also considering a "decreasing slide in severity" of crimes. You start with, say, murder at the lower end of offending. 8 years. Then an aggravated robbery. 6 years. Then kidnapping. 25 years?
Is a peverse train of thought, but still... (and apologies if my sentence guesses are off but I trust you get the intent) -
You start with, say, murder at the lower end of offending. 8 years.
Murder already has a minimum sentence of life imprisonment, with a minimum non-parole period of 10 years.
If someone commits a murder, and does an aggravated robbery on being paroled, it is highly likely they will be recalled to serve a bit more of their life sentence.
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Can I ask what are the realistic offences to be considered a first strike? i.e. what offence will likely get you >5 years as a first offence? (Not that these have to be your first offence - while this law isn't retroactive, sentencing will still take into account older crimes).
I don't want to come off like I'm searching for outlandish unlikely outcomes for this law. Which seems like it will have very few, especially compared to overseas jurisdctions.
So I'll just say that given how restricted it is, and how few people it will seem to trap, why are we really bothering given the counter-to-natural-justice problems with it? Aren't we dealing with those few similar cases already in the sentencing provisions?On the flip-side, I've regularly been decrying tinkering with sentencing at the margins for violent crime as entirely pointless as at that point those individuals aren't undertaking economic rationality decision-analysis at that level. So perhaps the huge-stick deterrent for being a 3rd-time recidivist nasty-type is actually something that will work given it's huge and well-publicised impact?
As Lucy said, do we know how many people this is likely to trap, and what the current sentencing impacts are for them? Will DoJ provide that sort of analysis for select committee?
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D'oh
DON'T have to be your first offence -
why are we really bothering
But most impotantly it will get politicians in the news - sigh.
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(I was right the first time, huh. Double D'oh).
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Graeme
I think Gareth's example from a bit earlier (3.49pm post) still holds regarding murder as a first offence.Sentencing Act 2002 s102 states:
(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.So you could get an 8 year murder sentence, serve it, commit aggravated robbery and get 6 years, then kidnapping and wind up with 25.
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Edward - I don't think that would apply in practice. There is no situation in which life with 10 years non-parole is manfestly unjust in which an 8 year term is going to be just.
The one case I can remember this being used was a really old guy who'd murdered his terminally ill wife. I think he got some sort of home detention.
If life but out in 10 is going to be manifestly unjust, the sentence imposed is going to be south of five years and it won't count as a strike.
And if you're going to rely on manifest injustice, then new section 86D(3):
The court must impose a minimum period of imprisonment of 25 years [for a third strike] unless the court is satisfied that it would be manifestly unjust to do so.
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If they're going to put in a thing about 'manifestly unjust' in the new 3 strikes law then it in theory answers most of the issues about odd combinations of crimes resulting in outrageous sentences upon a 3rd strike that people here have raised. Thanks for pointing it out (to those of us who didn't bother actually reading the new Bill!).
All that said, I can imagine a situation with the murder sentence where a judge may well want to give a sentence - say in a battering case where the victim of the battering commits murder - that was not life, but more than 5, to indicate the State's disapproval of murder being used as the solution to the situation (battered women who used to get manslaughter sometimes still received decent custodial sentences iirc). On the other hand, if the new law came in, perhaps that would even more disincline judges to pass sentence of over five years for such offences - so i guess you're right.
In fact, speaking more generally, is there a chance that a 5 year threshold for counting as a strike mean that some offences that would normally have attracted 6 or 7 years might actually get revised down by a sentencing judge, so as not to count as a strike, where the judge didn't think it deserved to?
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Edward, I don't think you should rely on the manifest injustice bit, however there is something else I've just noticed.
I've just re-read the section 7 report, and a line in it had me re-read a new section.
When sentencing someone on a third strike, it will only result in a sentence of life with no parole for 25 years if the judge determines that the appropriate sentence, but for the three-strike rule, would have been five years or more.
If the offence that would constitute the third strike deserves a four year sentence, then a four-year sentence results.
It just gets more and more liberal :-)
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It just gets more and more liberal :-)
Are they just appeasing their right wing and being secretevely sane? That's not what I'm wirted to expect from the tories.
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"Wired". I'm not really "wirted" for anything.
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Further to my last post, I should correct an error:
I stated in response to a question earlier:
Except that I assume the power of a judge to order a non-custodial sentence for the third offence would be removed by the Bill - is this correct?
For the third strike, yes. For the third offence, probably not.
In fact, while technically accurate, this is incredibly misleading. If the offence is a The option of a non-custodial sentence, or a short (<5 year) custodial sentence is still available to the judge.
An example:
Criminal A is convicted of manslaughter, and gets an eight year sentence. This is the first strike.
Criminal A, upon release, commits an aggravted robbery, and is sentenced to six years' imprisonment. This is the second strike.
Criminal A, upon release, commits (entirely consensual) incest. The judge upon looking at the situation, and decides it's not all that serious. A life sentence is not required. The judge can impose a non-custodial sentence (e.g. community work) or a custodial sentence of up to (but not including) five years' imprisonment. Only if the judge (ignoring the fact it will be a third strike) decides that the appropriate sentence would be five years' imprisonment or more, is the third strike rule of life with a non-parole period of 25 years imposed.
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Ben, certainly you're right about the pattern, but you should also remember that it's two acts of paedophilia serious enough to warrant a five year prison term (on separate occasions). It doesn't deal with the pattern issue, but it does slightly mitigate the injustice.
For sure, it's a pattern of criminal behavior. What I'm driving at, in a nutshell, is that just as all crimes are not equal, so also not all patterns are. It seems to me that repeating the same serious offense over and over is more of a justification for harsher sentencing than three completely different (although perhaps just as serious) crimes. At least in the latter case you could argue that they did learn from their past mistakes, that the punishments they received did act as future deterrence. I'm not standing by this position, btw, I just don't think it's settled anywhere near as clearly as a three strikes rule seems to suggest. Essentially I think it's overly simplistic.
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WH,
There are some interesting statistics on recidivism and re-imprisonment rates on the Corrections website. It is said that 34% of offenders who serve a sentence of more than 5 years will be re-imprisoned:
It is generally accepted, based on a wide range of studies, that most offenders do not "specialise" in any one type of offence: that is, the vast majority of persistent offenders have criminal histories featuring a sequence of convictions for offences across the criminal code. For example, many "violent offenders" will have histories in which a smaller number of convictions for violence are interspersed with large numbers of convictions for traffic offences, property offences, drug use, and so on.
Unfortunately, rehabilitating offenders seems to be painstakingly difficult.
I don't support this law, but what should be done about recidivist offending given the apparent clamour for tougher sentences and three-strike preventative detention?
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Criminal A, upon release, commits (entirely consensual) incest. The judge upon looking at the situation, and decides it's not all that serious. A life sentence is not required. The judge can impose a non-custodial sentence (e.g. community work) or a custodial sentence of up to (but not including) five years' imprisonment. Only if the judge (ignoring the fact it will be a third strike) decides that the appropriate sentence would be five years' imprisonment or more, is the third strike rule of life with a non-parole period of 25 years imposed.
That's...suspiciously reasonable.
I'm with Giovanni. This thing of a hysterical-sounding law with actually quite well-thought-out provisions is really *bizarre*.
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WH that seems to be saying the opposite of what I'm driving at. It sort of says that criminals have a "criminal mindset", much more than they have any particular hangups with particular forms of law-breaking. Interesting, indeed.
It has to be remembered that there are several purposes of imprisonment, and rehabilitation is only one of them. Another is to remove them from society to protect society, and I think that's the thinking behind 3 strikes - that you've proved you're crooked beyond repair, so the best thing for society is to keep you in a cage for as long as possible. There's some merit to this way of thinking, but 3 strikes still seems pretty arbitrary to me. That thinking was already captured within the range of sentences available to a judge, who could decide how far beyond repair any particular person found guilty is. Then again, the way Graeme is telling it, that range will still be available, it's just extended in terms of how harsh the treatment of a 3rd striker can be. So it's still on judges to set the standards for how fair these laws and practices can be.
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If the offence that would constitute the third strike deserves a four year sentence, then a four-year sentence results.
Note to criminals: When you're on strike 2, you need to think really carefully about your next criminal activity. Minor drug dealing, unarmed robberies, traffic offences - all fine. Stay away from the serious violence, rape, murder. Your 5 year crime is suddenly going to cost you 25.
I don't support this law, but what should be done about recidivist offending given the apparent clamour for tougher sentences and three-strike preventative detention?
A stronger emphasis on Corrections being entirely that - about correcting, as much as possible, the issues that have led to crime occurring. More psychologists, work for prisoners while in prison, education and training in prisons, more funding for parole officers, more parole officers, judges having the flexibility to earn their decent salaries by using their brains when sentencing.
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It just gets more and more liberal :-)
Interesting - the fewer and fewer circumstances in which it will apply seems like a good thing. Effectively they are giving the sentencing judge some leeway in deciding what's a strike, although clearly a pretty-damn-serious-enough chain of crimes will trigger that 25yr sentence. So it does seem to have narrowed down that trigger to a particular set of circumstances where few people will feel a great deal of sympathy for the offender.
Given that most serious violent criminals are unlikely to have a lovely Mr Edgeler explaining the underlying permutations but may see the "3 strikes and you're out" headlines, it may even end up providing the occasional deterrence to boot given it's first-glance seriousness.
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Interesting that large scale fraud isn't on the list of crimes.
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Seriously though, how big is the deterrence and correction side of this law meant to be? To me it's so much more about protecting society, and, perhaps elements of 'seeing justice done' or even revenge. I think this way mostly because of the political dimension the initiators of the law are coming from, the political right, which has never been big on the idea of corrections and rehabilitation.
Summary of this thought: This law is not aimed at the minds of criminals, who it considers to be lost causes. It's aimed at the society in which they are offending, which can be made happier and safer.
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On the non-legal/intellectual front, I am reading this thread with tears rolling down my cheeks, thinking of all the poor sods who are going to have to be murdered, beaten, robbed, raped or assaulted for these new laws to be tested...
I don't think I could ever work in the legal system. My inability to emotionally separate the laws at the procedural/intellectual level from the horrendous effects of these crimes on real people would most likely render me useless.
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