Posts by Graeme Edgeler
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I'm a bit out of touch with how many murders are committed in NZ every year these days (thirty?), but i'd guess that of those murders, all but maybe one or two would have been committed by people with some kind of previous serious convictions and probably prision time.
Prior to the election, the statistics were quoted in the New Zealand Herald as:
It is understood National's research shows that of the 144 offenders convicted of murder since 2002, 10 would be in this category.
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There's a statement calling out for a little research into whether you're more likely to be injured by another person in prison, or out of prison.
Almost certainly in prison.
I did think about this prospect, but ultimately decided I wasn't looking at it objectively, but rather giving the rationale of those who felt this way, and figured it was accurate.
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Yes exactly. That's the basic fault with penalties as deterrents.
David Garrett and the Sensible Sentencing Trust really are not thinking of this law, or any of the other increases in sentences they've been pushing over the last decade or more as using the criminal justice system as a deterrent.
This is about incapacitation, not deterrence:
You have proved that you are incapable of functioning in civil society, so we're going to send you to prison where you can't hurt anyone.
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Stay away from the serious violence, rape, murder.
This provides me with a lead in to discuss the other change to be inserted by this bill.
As well as being the mechanism for fulfilling their promise to ACT to support three strikes legislation to select committee, and the means by which to rbing in their pre-election promise of "no parole for the worst repeat violent offenders" (as noted in this comment there is no parole eligibility on the second strike ), this legislation is also the means for National to cover off its promise/slogan that "life would mean life for the worst murderers".
In this regard, the law has two effects:
1. If murder is the first offence that qualifies as a strike, the judge has the option of imposing a sentence of life imprisonment without parole.
2. If murder is the second or subsequent strike, then the judge must impose a sentence of life imprisonment without parole .[The rule is tempered somewhat by an allowance that the judge need not impose such a sentence if it would be manifestly unjust to do so (in which case a finite non-parole period would be imposed) but this won't apply often.]
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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.
Even major drug dealing isn't going to get you a third strike. For something to count as a strike, a few things are needed:
1. the offence must have been committed after the law comes into effect.
2. the offence must have been committed after the offender had turned 18.
3. the offence must be one of the 37 specifically listed offences in the law.
4. The sentence imposed (or that would have been imposed) must be at least five years imprisonment.Drug dealing, traffic offences, property crimes like theft or fraud - even if they result in lengthy sentences exceeding 5 years, do not count as strikes.
[I'd note, however, that some unarmed robberies (e.g. where there is more than one robber) can count as aggravated robberies.]
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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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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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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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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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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.