David Farrar: Three Strikes law slightly improved.....

Three Strikes law slightly improved but still unlikely to be an effective deterrent

Nicole McKee announced:

The Government is listening to New Zealanders and Cabinet has agreed to recommend modifications to the Sentencing (Reinstating Three Strikes) Amendment Bill, Associate Justice Minister Nicole McKee says.

I’m glad they took on board that the bill as introduced was so watered down from the old law, that it would not be worth proceeding with. And the two changes made go in the right direction, but fall short of what I hoped for.

“Originally the Bill set the threshold for triggering the regime at more than 24 months imprisonment across the board. While the qualifying sentence exists to ensure severe penalties are reserved for serious cases, we agree with submitters that this was set too high and are lowering it to make sure that offenders face appropriate consequences for serious violent and sexual offending.

Cabinet is proposing that the qualifying sentence threshold will be reduced to more than 12 months imprisonment at the first strike. As a result, more offenders will face stiffer penalties if they go on to commit serious crimes.

The threshold will remain at more than 24 months imprisonment at strikes two and three to ensure that the resulting stiffer penalties are reserved for more serious offending, as is the intention of the Three Strikes regime.

So they have lowered the threshold for first strikes from a 24 month sentence to a 12 month sentence. In reality this may not capture many more people as if a prison sentence is for less than 24 months anyway, it is often converted to home detention.

The threshold for first strikes should be conviction of a qualifying offence. There is no extra penalty for a first strike – but they get the formal court warning about future strikes. Why would you want to allow people to avoid getting a warning if they get home detention instead of prison? The idea is to deter.

“We are also making sure that those who received strike warnings under the previous regime for offending which meets the qualifying threshold will keep these warnings going into the new regime. Those who were warned under the previous regime will face consequences if they continue to offend.”

It was outrageous that those who had strikes under the old law were being reset to zero strikes. So it is good that some of those strikes will be carried over. But rather than carry all strikes over, they are only going to carry over strikes that would have been strikes under the new law. This means between half and two thirds of strikes won’t be carried over.

A test of this revised bill is whether it meets the test laid down by Justice Minister Paul Goldsmith, who in opposition said:

“It is unimaginable that offenders such as Wiremu Allen, who was convicted of a third strike offence which entailed breaking into a house, demanding money from the victim and then shooting him, would not receive the maximum mandatory sentence today.

So how would Wiremu do under the revised bill:

He got 10 months for his first strike offence of injuring with intent to cause grievous bodily harm. That strike is not carried over because he would not get a strike under this law.

Ge got 13 1/2 months for his second strike of robbery. That strike is not carried over because he would not get a strike under this law.

So Wiremu is happy. Neither of his first two strikes would be strikes under this law.

His third strike of a home invasion armed with pistols where he bashed the victim and his associate shot the victim in the knee would at best be a first strike under this law. He would have to bash or strangle at least two more victims before he gets what Goldsmith said he should get – the maximum sentence without parole.

It seems the Government has been captured by officials again. They knew they had to make changes to the bill as introduced, but have made the smallest possible change. It is no surprise officials are against the bill. They probably all studied criminology at Victoria University. There’s only one criminologist in NZ who actually believes in deterrence.

To see how bad the advice is, look at this article in the Herald:

The Government has toughened Three Strikes 2.0 in response to feedback that the initial proposals were too soft.

How much tougher can now be revealed: the Ministry of Justice estimates that 4312 more first-strikers, 649 more second-strikers, and 88 more third-strikers will be added in the regime’s first 10 years, compared to the estimates for the original proposals (7795 first-strikers, 266 second-strikers, and 11 third-strikers).

In percentage terms, the number of first-strikers would increase by 55%, second-strikers by 244%, and third-strikers by 800%.

This is just nonsense. You can tell that by looking at the numbers for the 12 years the much tougher law was in place for. The numbers were:

• 14,687 First strikers
• About 750 second strikers
• 25 Third Strikers

So there were 25 third strikes under the original law in 12 years and the Ministry is saying under this softer law, there would be 88!

Using the thresholds in the introduced bill, only 7 of the 25 third strikes would “earn” three strikes. Under the new threshold, that increases marginally from 7 to 8.

So we have 12 years of actual data showing under this law, there would only have been eight third strikers. Yet the Ministry says it will lead to 88 third strikers. The addition of two extra qualifying offences could not explain this huge difference.

And officials said a retrospective regime contravened a fundamental justice principle: that you should only suffer penalties that existed at the time of the offending.

Officials are bullshitting Ministers. Carrying over strikes earns under the old law is not retrospective in any way. As I stated in my submission:

Legislation is retrospective if it applies to an event or action that has already taken place. Carrying the strikes over would have no impact on an individual for their past actions, unless they commit a crime in future. The punishment will apply to their decision to commit a crime, in the knowledge of what the law now provides.

No criminal will be given a penalty that didn’t exist at the time of their offending. The officials are completely wrong in calling it retrospective. They hoodwinked Ministers initially on this. The officials should be called before a select committee and asked to justify their advice which contravenes not just the general definition of retrospective but also the Legislation Design and Advisory Committee guidelines.

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders.