Garrett condemns ‘manifestly unjust’, others condemn 3 strikes

In a guest post at Kiwiblog the person largely behind the three strikes legislation, David Garrett, condemns the way the legislation has been used in practice – Guest Post: David Garrett on manifestly unjust

The “unless it is manifestly unjust” out clause was insisted on by National as its price for agreeing to support the 3S law in the first place – without that, we would not have a 3S law at all. That notwithstanding, I now feel something of a dupe for recommending to the ACT caucus that we agree to it.

It was intended to be something that was very rarely used; we never envisaged it being applied in every case  of murder – all eight of them – which have now  come before the court as a second or third strike.

I spoke at every stage of  3S  passing through parliament, and numerous times during the Committee of the Whole stage.  The issue of the “disproportionality” of 3S sentences was raised numerous times by the Labour Party; it was raised and responded to  so often I wondered if they were simpletons.

I made it clear that disproportionality was the whole point of the 3S regime; it was intended  that consequences get exponentially worse for repeat offenders.  At no stage did any of the National Party speakers on the  Bill  suggest that “…or grossly disproportionate” ought to be explicitly added to, or implicitly understood to be included in, the “manifestly unjust” proviso.

The Judges of the Court of Appeal have  not only thwarted the clear will of parliament, but have inserted words into a definition that are not there, and were never intended to be there. In my view, this is nothing less than a constitutional outrage, and if it were occurring regarding a law passed by a government of  the left, there would be loud protests in the street.

Our constitution is very clear: the laws are made on one side of Molesworth Street, in parliament, and ultimately applied on the other side of the street in the Court of Appeal. Because the Judges of the Court of Appeal don’t like the 3S regime, they have rewritten it. That is nothing short of a disgrace.

Is it that the Judges of the Court of Appeal ‘don’t like the 3S regime, or that they don’t like it when use of three strikes is manifestly unjust?

I have seen in sentence appeal judgments that judges go to great lengths to ensure sentences are similar in like crimes with like criminals.

Perhaps the 3 strikes law is too prescriptive and doesn’t take into account the many factors that determine sentences.

Greg Newbold at Newstalk ZB: Three strike rule unfair – expert

Canterbury University professor Greg Newbold says when the law was introduced it was thought this provision would be used sparingly, not in every case.

“The judges are interpreting the law very liberally. The judges effectively are saying the law itself is manifestly unjust and they are refusing to apply it.”

He says judges’ refusal to apply the three strikes law proves it should never have been introduced in the first place.

“It was a ridiculous rule to start off with it. It made no sense, it’s full of flaws, it’s completely inconsistent with the principles of justice.”

Meanwhile National promises to bring back three strikes and reverse any bail or sentencing changes

National says it will reinstate the three-strikes rule if it gets into power and reverse any changes the Government makes to bail or sentencing laws.

National’s justice spokesman Mark Mitchell said today that if his party was in Government in 2020 it would reverse the repeal of the three-strikes regime.

It would also reverse any changes to sentencing and bail laws “which will see more serious, violent offenders on the street”.

And in social media National MPs and supporters are trying to blame Little and the Government in advance for any crime committed by someone on bail or released from prison on parole.

It looks like crime and punishment will continue to be a populist political football.

ODT: Law changes a risk and challenge

The rapid rise in prison numbers follows 30 years of public policy-making and the public calling for tougher sentences, which Mr Little believes has criminalised behaviour.

One of the major challenges is to change public attitudes, saying what has been happening for 30 years in criminal justice reform is not working. Violent offending is increasing.

Fortunately, Mr Little is proving to be one of the more successful ministers in the Labour-led Government and he will not be bowed by the criticism already coming his way from many angles.

However, the minister needs to allay public concerns when it comes to easing bail laws and sentencing options. Law and order always features highly on any poll of public concerns, despite being part of a society based on fairness and equality.

No-one wants sexual offenders and murderers running around their suburbs and that is the issue Mr Little will have to address. It will only take one serious crime by someone on home detention or on bail for his opponents to start howling at the moon.

Denials the Government is going soft on crime will sound empty at that time.

Little is going to manage any changes carefully. There will always be horrific crimes committed that could have been prevented if criminals and alleged criminals remained locked up. And there will always be people prepared to use crime and punishment as a political weapon.

21 Comments

  1. This sort of thing is circulating:

    It is ridiculous to blame the Minister of Justice for every crime, the Minister of Health for every death etc.

    This is an insidious sort of attack.

    • Gezza

       /  June 1, 2018

      No it’s not. This is a matter which needs to be very carefully worked through and I’m not sure it is. It would be better to change the law on drug use and take care of that unnecessary component of the prison population maybe – but rushing into loosening bail conditions does raise the risk of more people who are dangerous and should be detained being released and destroying someone’s life or health again.

      Is it that the Judges of the Court of Appeal ‘don’t like the 3S regime, or that they don’t like it when use of three strikes is manifestly unjust? I have seen in sentence appeal judgments that judges go to great lengths to ensure sentences are similar in like crimes with like criminals.

      Yes but that was a large part of why bail and parole release conditions & longer sentences were introduced with bipartisan support. Judges were feeling bound by liberal interpretations in the precedent decisions of their colleagues & society suffered from the depredations of recidivist offenders.

      This smacks to me of trying to solve the prison overcrowding problem by knee-jerking and throwing the baby out with the bathwater. When Little makes changes that result in a violent offender on release killing or maiming someone, he will be blamed, and I will be part of the blaming chorus.

      • NOEL

         /  June 1, 2018

        ” It would be better to change the law on drug use and take care of that unnecessary component of the prison population maybe – ”

        We’ve been over this ground before. Those in prison for dug offences are a small minority of all the prison population. Of that the majority are convicted drug dealers or smugglers not users.

        • Gezza

           /  June 1, 2018

          Fair enuf I dunno what the numbers are but the way things have gone with the prison population ANY reduction by people who aren’t a threat to society from the prison population I’m all for.

          Any improvements in prison rehabilitation services I’m all for.

          Any workable system of restorative justice on bail I’m all for if the offender takes part.

          But anyone who looks a strong possibility for continued offending on bail I’m not.

          And letting out potential predators I’m not.

          • phantom snowflake

             /  June 1, 2018

            IIRC the rationale for including some drug offenders in the group for which bail laws were tightened under National is that this group would be at high risk of re-offending if they were out on bail. It seems pretty obvious that many of them may be likely to re-offend because they have addictions to support. Thus prison (on remand) is being used as a defacto addiction treatment centre, but without the treatment! Definitely a fail.

            • High Flying Duck

               /  June 1, 2018

              You’ve hit the real problem there PS. The problem is the lack of alternative facilities where incarceration is coupled with the necessary treatment for addictions to prevent re-offending.
              Throwing crims in jail fixes the symptom to some extent (society is safer), but does not begin to fix the root cause of the issues required to bring the crime rate and incarceration rate down over time.
              National were culpable in this, but Little is no better in his quest to reduce prison numbers without putting in place the necessary treatment facilities that would enable it.

            • phantom snowflake

               /  June 1, 2018

              HFD: Unfortunately at the moment it looks unlikely that the government will increase any funding for addiction services until the Mental Health (& Addiction) Inquiry is complete. Which means the budget in 2019 I guess.

    • High Flying Duck

       /  June 1, 2018

      I’m pretty sure it was Newbold on ZB yesterday saying the 3 strikes law was ridiculous and ineffective in an interview.
      When Larry asked him his thoughts on why second strike reoffending had dropped 34% since the law came in to force – significantly more than can be accounted for by other factors such as reduced crime rates – he hummed and haa’d and said he couldn’t comment because he hadn’t seen the data.
      Not sure how he came to the conclusion is was ineffective given he hadn’t bothered looking at the stats.

      • Corky

         /  June 1, 2018

        I heard that interview. I think it may have been some prat from Victoria University. His voice was too snivelly to be Newbolds. How convenient he hadn’t seen the data. Larry should have said: ”tell you what, I’ll send you that data then reschedule you for an interview.”

    • Gezza

       /  June 1, 2018

      And from inside the Tweet’s linked Stuff article:

      “You are not simply to be assumed a lost cause at the age of 19,” Justice Patrick Keane told him at that time. The judge opted not to sentence Robertson to preventive detention – which could have kept him locked up for the rest of his life.

      Crown prosecutor Simon Bridges (before he became an MP) had pushed for the tougher sentence, arguing further that if preventive detention were not meted out the sentence should be at least 12 years. But Justice Keane said that though it was possible the kidnapping and abduction was the start of what could become a pattern, Robertson had a history of violent, rather than sexual, offending.

      That meant his case fell short of the kind of entrenched deviancy that justified indefinite terms of prison. He settled instead on a total of eight years’ jail with a minimum non-parole period of five years.”

      If 3 Strikes goes, the Preventive Detention law obviously needs to be changed to include offending such as Robertson’s. I cannot for the life of me work out why it doesn’t. I believe he was accurately assessed as a danger.

      University of Canterbury criminologist Greg Newbold believes the only option with offenders as extreme as Robertson was preventive detention.

      “Preventive detention is effectively a life sentence. It’s generally considered to be the most serious sentence because it’s given on the assumption you are likely to continue to be a danger to society and that you will reoffend. I’m surprised he [Robertson] didn’t get it.

      No. Neither can I. If a decision made by a manager or executive had this result they’d be appearing in the dock.

      • Gezza

         /  June 1, 2018

        *No. Neither can I. 🙄
        Soz – my head was somewhere else. I meant: Me too – Im surprised Robertson didn’t get preventive detention.

  2. lurcher1948

     /  June 1, 2018

    So PG you have drunken the kool aid supplied from the colourful bitter David Garrett.Mr Garrett the disgraced former ACT MP only has the “3 strikes law” as his legacy,and so called guest posts on a nearby right wing blog,pathetic really.

    • Gezza

       /  June 1, 2018

      Why don’t you write a guest post rebutting Garrett’s? That could be your legacy? o_O

      • lurcher1948

         /  June 1, 2018

        You and i both know it was the bribe given for supply and confidence to national. Nationals idea of law and order,plus the 3 strikes law??? only applied 3 times was a total disaster, pandering to the thick, mostly right wing who want the person thrown in jail and the key thrown away, hence our embarrassing LARGE prison population, A second point is the judges thought it was a crock of sh*t thats why Garretts legacy is gone in 3 weeks and a better system of stopping reoffending.WOW, nationals stuffed up a lot in 9 years its a start fixing all the problems,

        • High Flying Duck

           /  June 1, 2018

          Interesting argument there. The fact the 3rd strike has only been reached 3 times shows the success of the law Lurch.
          If there were multitudes of criminals getting 3 strikes the law would rightly be seen as a failure.
          Strike offenders re-offending rates have dropped significantly after the first strike and more again for those who reached 2 strikes. Exactly what was designed to happen.

      • lurcher1948

         /  June 1, 2018

        Right born 5-12-1948
        one of 3 children
        got sc
        One speeding ticket
        tradesman
        never unemployed or got any benefits
        mortgage-free
        retired 69yo
        NEVER BOOTED OUT OF ANYWHERE,ie parliment
        HEALTHY
        owned by 3 dogs
        and still married to my wife for a loong time
        my life

        • Gezza

           /  June 1, 2018

          I must confess I did once get approached by Parliament Security & told not to rest my elbows on the ledge & lean out to peer at the seats I couldn’t see under the balcony of the Public Gallery while the House was in session, but I didn’t get kicked out or anything. I was in my 20’s & with a bunch of workmates & we were all a bit tiddly at the time. I remember thinking “How slack is that, you can’t see them all from here!” 😡

      • lurcher1948

         /  June 1, 2018

        See below Gezza,my personal standards are higher than a failed ACT politician and politicians are lower than a used car salesman,the ACT ones that go with national,you know the ones down with the snails and worms

    • Corky

       /  June 1, 2018

      Easy, Lurchy. Talking of law and order… don’t forget you and I are on probation.

      • lurcher1948

         /  June 1, 2018

        I play the ball,so i have no worries

  3. lurcher1948

     /  June 1, 2018

    Settle down Simon, someone might believe you are telling the truth
    Chuck Bird
    FYI

    Chuck —

    Thank you for adding your name.

    It’s time the Government fronted up to New Zealanders about its plans to go soft on crime and explain why it is willing to gamble with their public safety.
    Please forward this email on to others who may want to add their name.

    Kind regards

    Simon Bridges
    Leader

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