Third strike sentence “grossly disproportionate”

Yesterday a man received a mandatory third strike sentence of seven years imprisonment that was “at the lower end of the spectrum of indecent assaults”, but High Court judge J Toogood said that serving a full sentence  without parole would be a grossly disproportionate outcome and manifestly unjust so ruled that parole could apply if appropriate at the time.

The Justice Ministry confirmed to the Herald that the case was the first third strike sentencing under the Three Strikes law.

From the Sentencing Notes:


[1] Raven Casey Campbell: you appear for sentence having pleaded guilty in the District Court to one charge of indecent assault.1 Because you have previously received stage-one and stage-two warnings under the “three-strikes” law, this has become a stage-three offence and you are liable to be sentenced to the maximum term of seven years’ imprisonment and to serve it without parole.

[3] In March 2013, you were convicted of receiving stolen property (committed in October 2011) and possessing a knife in a public place (in April 2012). At that time, you were also convicted of robbery and demanding to steal, offences committed in September and October 2012. You were between 20 and 21 years old at the time of that offending. On the more serious charges you received concurrent sentences of fourteen months’ intensive supervision and four months’ community detention, and you were given a stage-one warning on the robbery charge.3

[4] On 7 April 2014, you were convicted of aggravated robbery and sentenced to three years and four months’ imprisonment. That offence was committed only five months after the earlier sentences were imposed. You were given a stage-two warning. The terms of that warning informed you what the consequences would be if you were convicted of a later qualifying offence. It has not been suggested to me that you did not understand it or were not capable of understanding it, but I have no doubt that it was not in your mind when you committed this impulsive and foolish offence.

[5] The current offending occurred on 17 May 2016, while you were serving your sentence of imprisonment at Waikeria Prison. A female Corrections officer was standing in a doorway supervising prisoners in the kit locker, where prisoners exchange their clothing, towels and bedding for fresh items. Standing behind the Corrections officer, you grabbed her right buttock, squeezed it quite hard, and held on for about 1 to 2 seconds.

[6] You were told to go to the guard room but you did not make any attempt to move. When the Corrections officer went to leave the yard through a set of steel gates, you followed her, grabbed the gate, and asked the Corrections officer if you could talk to her. You were told to move your hand so the Corrections officer could leave and you did so. The Corrections officer was not injured but she suffered stress and has been off work.

[7] You have said that you really liked the officer; that you grabbed her as a bit of a joke and you thought your actions would be taken that way.

“Three-strikes” regime

[13] Mr Sutcliffe accepts that because you have been convicted of a stage-three offence other than murder, I have no option but to sentence you to the maximum term of imprisonment prescribed for the offence; that is, seven years’ imprisonment.6 I agree that is very harsh given that what you did was not the most serious assault of its type, but Parliament has determined that your history of violent offending requires a very stern response to protect the public from you and to act as a deterrent to you and others. It may seem very surprising that this consequence could be required by law for an offence of this kind, but that is the law and I have no option but to enforce it.

Sentence without parole Principles

[14] The law also requires the Court to order that you shall serve the entire sentence without parole, unless that would be manifestly unjust, given your circumstances and the circumstances of the offence.

Discussion

[17] The assault was spontaneous and not malicious, and the act itself was at the lower end of the spectrum of indecent assaults.10 There have been cases where offending of a similar nature or gravity has not resulted in a sentence of imprisonment at all.

[19] Overall, were it not for the requirement to sentence you to the maximum term of seven years, the need to denounce your conduct, hold you accountable and deter others and you from such offending would likely have resulted in a period of no more than 12 months’ imprisonment.

Conclusion

[21] Having considered all of these factors, particularly the nature of the offence and your prior offending; the early plea; your remorse and insight, and your rehabilitation prospects, I have no doubt that requiring you to serve a full sentence of seven years’ imprisonment without parole would be a grossly disproportionate outcome. After you have served one third of the sentence, it will be a matter for the Parole Board to determine whether and when it is safe to release you into the community. You should be encouraged, Mr Campbell, to take part in those rehabilitation programmes.

Result

[23] On the charge of indecent assault to which you have pleaded guilty, I sentence you to seven years’ imprisonment as required by law. I do not order that you must serve that sentence without parole.

http://www.courtsofnz.govt.nz/cases/r-v-campbell/@@images/fileDecision

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47 Comments

  1. Alan Wilkinson

     /  25th November 2016

    Yes. Seymour defended this but it is indefensible. It needs to be fixed.

    Reply
    • Alan Wilkinson

       /  25th November 2016

      Probably there needs to be a special appeal option to a higher court where the mandatory three strikes sentence is manifestly unjust.

      Reply
    • Gezza

       /  25th November 2016

      The case seems be one of unreasonable punishment. Unfotunately the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment (Section 9 of the Bill of Rights Act), like other provisions of the BORA, does not have supremacy over any other legislation enacted by a simple majority of MPs. Perhaps we need a written Constitution that makes such ill-considered legislated unfairness unconstitutional?

      Reply
      • Corky

         /  25th November 2016

        Look at the guys CV. Look at the warnings…what’s the problem? Its seven years lousy years jail.

        Reply
        • Gezza

           /  25th November 2016

          Well, maybe only a third of that. You’re right, Corky. Sometimes you can be. I should have a look at his whole CV because his earlier offending is bad, and his circumstances of upbringing would be of interest to me too. It’s noted he has no satisfactory community support. So often the case.

          Reply
      • Gezza

         /  25th November 2016

        I’m takin a few hits, Corky 🤕

        Reply
  2. Jail #1 – Several sentences were served concurrently ( where the longest prevails ) Receiving stolen property, and possessing a knife in a public place, robbery and demanding to steal. He got fourteen months’ intensive supervision and four months’ community detention. He was given Stage #1 warning

    Jail #2. Convicted of aggravated robbery – three years and four months’ imprisonment. That offence was committed only five months after the earlier sentences. Stage #2 warning

    “The terms of that warning informed you what the consequences would be if you were convicted of a later qualifying offence. It has not been suggested to me that you did not understand it or were not capable of understanding it, but I have no doubt that it was not in your mind when you committed this impulsive and foolish offence.”

    Then the sexual assault case in prison. The degree of assault – buttock grabbing and pursuing mightn’t sound much to men, but as a woman, I can assure you that being manhandled by someone twice your weight, and unsure of the outcome is terrifying.

    I’m not authoritarian on law & order, but he is without satisfactory community support according to Toogood. He’s a 25 year old man – not a child, he’s violent, a thief and assaults women and was warned, in no uncertain terms, what the result of further offence meant.

    After a third of his sentence and bring obliged to attend intensive rehabilitation he gets to be considered for parole.

    Reply
    • Kitty Catkin

       /  25th November 2016

      It seems to me that he is being sentenced not for the bum-squeeze but for ignoring the warnings. Bum squeezing IS at the lower end-in both senses-but it’s still sexual, it was unwanted and probably unnerving when done by this person. This wasn’t a teasing thing between friends. He heard the warnings-and they are spelt out in words of one syllable (well, in a way that nobody could misunderstand) and ignored them. It’s still an indecent assault and must have been very unpleasant. The warder has, I think, over-reacted, but that makes no difference. He did it-he can’t complain. He has an odd way of showing that he likes someone.

      Reply
  3. Klik Bate

     /  25th November 2016

    Sensible Sentencing Three Strikes spokesman, David Garrett,: ‘…there is no disputing that the indecent assault he was convicted of was at the lower end of the scale of such offending. HOWEVER, a couple of things have been somewhat overlooked here – one being an ominous probation report which says Campbell is a man whose violence is getting worse and who poses a real risk to the community……….. ‘

    Still, Selwyn’s son gets to go home to his secure home in Remuera, and wont have to worry where this feral scumbag will end up once he’s back on the streets of the Free Range Asylum..

    Reply
  4. Alan Wilkinson

     /  25th November 2016

    Before making further comment there is one aspect to this which I find hard to reconcile. I don’t understand how being held for 1-2 seconds by your bottom is cause for a prison guard having to go home on stress leave. I would have thought guards were made of much tougher stuff. Something about this story seems to be wrong or missing.

    Reply
    • duperez

       /  25th November 2016

      Only those who are there ever have the real story. And they have but their version of it.
      We, somewhere remote, have some expectation that the words we get to see tell the “real” story. Even those are mostly filtered.

      Pausing to make further comment or making no comment at all is anathema to the modern media mode and those fuelled by it. Giving issues consideration only with all relevant information and perspectives available takes too long.

      But then when it’s all over, even after the most sober, thorough consideration, there’s always a David Garrett to opine that something’s been “overlooked.”

      Reply
    • What’s “wrong or missing” is in failing to recognise that this not only speaks to his character, but that it was unsolicited, it was performed against a Corrections Officer, it confrontational and it was violent. Most importantly it is justly categorised as an offence.

      “Standing behind the Corrections officer, you grabbed her right buttock, squeezed it quite hard, and held on for about 1 to 2 seconds.
      You were told to go to the guard room but you did not make any attempt to move. When the Corrections officer went to leave the yard through a set of steel gates, you followed her, grabbed the gate, and asked the Corrections officer if you could talk to her. You were told to move your hand so the Corrections officer could leave and you did so.”

      The assault was bad enough, but the entitlement of the offender and the unknown outcome of his action and the pursuit would have added to the officer’s distress.

      Reply
      • Gezza

         /  25th November 2016

        Yes, but also

        [12] When speaking to the pre-sentence report writer recently, the victim stated that she hoped the Court would allow you the opportunity for parole as you are young and need help. She said you do not grasp appropriate relationship boundaries and she would like to see you offered assistance.

        Reply
        • …and he’s being offered that apparently. My impression, reading between the lies, is that he hasn’t the appropriate support on the outside to justify release.

          Poor bugger. Damned either way. It sucks

          Reply
        • Gezza

           /  25th November 2016

          @Trav

          [8] You are 25 years old. The writer of your pre-sentence report says that you have limited support in the community and spent most of your childhood in foster care with one main caregiver who passed away recently. You have one brother who visits you in prison and you would like to build ties with the rest of your whanau with whom you do not currently have a relationship.
          [9] You told the report writer that it was not until after the assault that you considered how disrespectful your actions were and that, looking back, you do not condone what you did. You said that, if the victim was willing, you would like to participate in a restorative justice meeting. You have completed the Medium Intensity Rehabilitative Programme and Drug Treatment Unit while in prison.
          [10] I have read your letters to the Court and to the victim; they are thoughtful and insightful. You recognise that your behaviour was “rude, disrespectful and immoral”. You acknowledge that you made a stupid and thoughtless decision and say that you have learned a huge lesson. I sense that your remorse is genuine and that it is as much related to the effect of your behaviour on the victim, whom you liked, as it is on the consequences for you.

          Yeah, it does suck. A good stable environment and upbringing among people who constantly love and guide you makes a huge difference.

          Reply
      • Alan Wilkinson

         /  25th November 2016

        None of that convinces me the incident was more than very minor, traveller. It was an assault on dignity only. As a physical assault it was trivial and momentary. As a sexual assault it was similar. If it occurred in a rugby match it would be regarded as a nullity. A seven year sentence for it is ridiculous far beyond justification and those attempting to do so discredit themselves.

        Reply
        • I’m sorry, I’m no wuss, but grabbing a guard by the butt then pursuing her and blocking her is scary stuff.

          As for his seven year sentence, he serves a THIRD and he’s got parole potential. The guy is a proven and convicted thief and menace (aggravated as in armed), so we’re not simply dealing with little Billy Bottom Botherer here.

          Reply
          • Alan Wilkinson

             /  25th November 2016

            Nope, you are a wuss, traveller. He grabbed the gate, not her, and let go when told to. At least that is what we are told but I still think there must be more to it.

            Reply
            • Do I feel sorry for him? Yes. Is the system faulty? Yes.

              He is a victim alright, just not of the justice system. Imagine those who would scream blue murder, if and when on release Mr 2 plus a measly bottom grab and chase, committed aggravated robbery or potentially was violent. He is the victim of a failed family and a system that didn’t address any of his needs that could prepare him for independence.

              I’m very, very sad for him, but do I want him as a neighbour? No.

              Maybe you could prison visit and set him on the path to redemption. I do suggest, however, you’d be doing him a disservice if you tell him that bottom grabbing COs and then pursuing them, blocking their escape is simply wet bus ticket stuff, and that anyone who says otherwise is a wuss.

            • Alan Wilkinson

               /  25th November 2016

              It’s not a seven year sentence issue or even a three year one. More like three months. It is utterly trivial to anyone who’s ever played a contact sport.

            • Kitty Catkin

               /  25th November 2016

              No, he grabbed her bum and squeezed it hard,

              I don’t know about contact sports, but this wasn’t one. I had my bum squeezed once and it was no big deal-but this was a different situation. She was a prison officer, he was a prisoner, they were not on the rugby field (where I’d guess anything like this isn’t a totally unsubtle advance) nor were they at a party as I was where it was just a bit of fun.

            • Alan Wilkinson

               /  25th November 2016

              There have been cases where offending of a similar nature or gravity has not resulted in a sentence of imprisonment at all. – judge.

              Many millions, I expect, most of which never went to court.

  5. Bob

     /  25th November 2016

    Excellent news, looking at his history this guy is not getting the message, maybe now he will. What really irritates me is the activist judges that openly defy the will of Parliment and go through all sorts of verbal gymnastics to try and avoid doing what they should be doing. They are grossly overusing the ‘manifestly unjust’ option, maybe it should be changed to remove this option from the judge, the convicted offender gets the works and can request a review after they have served three quarters of the full sentance and can show they do understand the message.

    Reply
  6. Blazer

     /  25th November 2016

    3 strikes another unwelcome import from the country with the highest incarceration rate in civilised society.

    Reply
    • Blazer, have a real look at the incarceration rates at ::https://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate

      At 202, NZ has about a middle rating , unlike the US at 693 so once again, you are spouting un-researched bigotry, or repeating left wing propaganda.

      Reply
      • Did you miss the words “import from” BJ …?

        You’ve provided a link that proves Blazer’s point …

        Imported from America, along with ‘pop culture’, drug culture and Right-Wing economic reform culture.

        Reply
        • You need to read your history books (and not just the Bryce Edward recommended ones).
          The only relatively free pass I’ll give you is pop culture, though much of mine is UK based, Beatles,Stones etc. As for drug culture, I think you’ll find the entire old world and the east were huffing, puffing, sniffing and drinking long before the new world and the United States were federated. Likewise, right wing economic reform – USA? I think you’ll find Thatcher lead the way there..

          Reply
      • Blazer

         /  25th November 2016

        you owe me an apology as your link supports my statement.

        Reply
        • I apologise to Blazer, and thank PZ for explaining it to me. Note however, that Russia and China have the highest rates, not the US.

          Reply
          • Blazer

             /  25th November 2016

            your link does not confirm China or Russia as having higher rates than the U.S.

            Reply
      • Gezza

         /  25th November 2016

        There is an element of ambiguity in your claim, due mainly I suspect to a grammatically incorrect sentence structure. This I believe has led to a misunderstanding on the part of the military and a blue on blue situation.

        Reply
        • Gezza

           /  25th November 2016

          Oops, soz. That’s @Blazer.

          Reply
          • Gezza, thanks for the get out of Jail free card. I refer to this useful look at the 3 strikes law “https://www.lawsociety.org.nz/practice-resources/commentary/legislation-and-regulations/Three-Strikes-Five-Years-On.pdf”
            If you read it, you will find that the 3 strikes law has its origin in California State and several other countries according to Dr Warren Brookbanks LLD
            Professor of Law at The University of Auckland. So Blazer will understand why my apology was half-hearted as semantically he was wrong.

            Reply
            • Blazer

               /  25th November 2016

              California is in the U.S.A…your figure of 693 per 100,000 in the U.S is way ahead of both China and Russia by any measure.

        • Blazer

           /  25th November 2016

          you can add a comma….for clarification.

          Reply
          • This is what it said about China, “China. The rate of 118 is for sentenced prisoners in 2015 in Ministry of Justice prisons only. International Centre for Prison Studies: “1 649 804 [prisoners] at mid-2015 (via Asian and Pacific Conference of Correctional Administrators – sentenced prisoners in Ministry of Justice prisons only, excluding pre-trial detainees and those held in administrative detention). The Deputy Procurator-General of the Supreme People’s Procuratorate reported in 2009 that, in addition to the sentenced prisoners, more than 650,000 were held in detention centres In China. If this was still correct in mid-2015 the total prison population in China was at least 2,300,000. … 118 [rate] based on an estimated national population of 1.4 billion at mid-2015 (from United Nations figures) – sentenced prisoners in Ministry of Justice prisons only. (A total prison population of 2,300,000 would raise the prison population rate to 164 per 100,000.)”[1][2] See also: Re-education through labor and Laogai.”

            For the Russian Federation you needed to look at the explanatory notes.

            Reply
  7. artcroft

     /  25th November 2016

    Ironically a hunter who shot and killed another twenty three year old man was sentenced to six months inside yesterday. Judge noted that the sentence only meant three months would actually have been served. Another great week for kiwi justice. I guess the courts figure hunters just get what they deserve.

    Reply
    • Kitty Catkin

       /  25th November 2016

      That was an accident, the cases are quite different. It’s silly to try to compare two cases.

      Reply
  8. artcroft

     /  25th November 2016

    Shoot first, ask questions (or identify the target) second is the lesson here. Cos if your second, your dead, and if your first but wrong about the target you’ll still be out before summers done and have a chance to bag a stag in the autumn.

    Reply
  9. lurcher1948

     /  25th November 2016

    Cheaper to shot the shit….

    Reply
  10. Corky

     /  25th November 2016

    This is what I call justice. The thing is- nobody asks what would have happened to the guy should these woman have overpowered him. That these women were prepared to take on a man shows they were street hard. They in returned received street justice. This beats the bullshit justice system we have. Notice how quick and efficient this lesson is.

    Reply

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