Lack of evidence on effectiveness of 3 strikes law

Minister of Justice Andrew Little wanted to scrap the contentious 3 strikes law but had to ditch plans when NZ First said they would not support ditching it.

Families Commissioner Len Cook has a say on Evidence and the ‘Three Strikes’ law

The ‘Three Strikes’ law exists because a majority of Members of Parliament want it, although there is no evidence which exists to justify or shape it.

Claiming “a majority of Members of Parliament want it” is not strictly correct. A majority of MPs voted for it in 2010, but as that was a party vote there is no way of knowing how many individual MPs supported it and how many didn’t.

Understanding how we got here might be helped here if we explore some of the ‘evidence’ used to introduce the law and explain its operation since then.

Crime generally has been falling since the 1990s, and for violent crime there was a peak around 2008/2009 and then a decline in cases taken to Court. This general fall in offending can be seen in most outcome measures including convictions. Sexual assault offending is stable and violence offences have declined since 2009.

Statistics support the claim that violent crime is falling. However there are perceptions that it is still a major problem (it is, even if reducing) – media and social media could be exaggerating the levels.

There are few cases that the three strikes law affects, and these do not provide evidence to conclude whether this particular law has had any influence on offending, especially when the introduction of the law will also have had an influence on the prosecution of cases and in sentencing judgements.

Then Minister of Justice Adams has provided an answer to a Parliamentary Question in 2017 which, despite her comments, became the basis of misleading reactions. The information given has been used by others to suggest that recidivism from serious offending has fallen by some 34 percent since the three strikes law was passed.

Quite simply, it is not realistic to assume that what happened before 2010, when the law was enacted could be the same as the period after 2010. The comparison with offenders before 2010 is simply hypothetical because the classification of people into second and third strikes did not exist then and has retrospectively been made up.

That makes it questionable.

Yet again, as occurs across our Justice system, application of a new law will be targeting Māori and Pacific offenders disproportionately rather than those committing the worst offences. Little has changed since the 1970s when one in 14 Māori boys of each birth cohort were taken into institutions by the state alongside one in 100 Pākehā boys.

Cook may be correct, but where is the evidence “a new law will be targeting Māori and Pacific offenders disproportionately”.  Ironicially:

Deliberation now on offending needs to be founded on knowledge rather than ignorance of our recent history in criminal justice.

While the arguments for the law link it to the need for proper redress for victims, we simply do not know whether there is a connection. The existence of the three strikes law may delude our Parliamentarians into believing that providing redress for victims is this manner best reflects their interests. For this we have no evidence.

Graeme Edgeler had a go at evidence last year – Three Strikes five years on! Now with accurate numbers!

I now have this data, following contact by the Ministry of Justice after my retraction (and Nikki Macdonald’s excellent work in the Dominion Post) was published, and the Ministry apologised for falling short of the high standard they set for themselves, and offered to provide comparable data if I still wanted it.

The comparison between the years before and after the coming into force is less stark, but there remains a reduction in strike recidivism beyond that in strike crime generally. The extent to which this fall can be attributed to three strikes remains anyone’s guess.

So with a lack of evidence and many guesses the effectiveness of the 3 strikes law remains highly debatable. And the law remains in place thanks to NZ First’s deciding voting power.

Public opinion is not a measure of effectiveness but of perception. Recently Sensible Sentencing did a poll and asked:

Since 2010, New Zealand has had a ‘Three Strikes’ sentencing law for serious violent and sexual offenders who continue to commit offences. This law removes parole eligibility for repeat offenders and imposes the maximum prison term available for the offence committed, for those who offend a third or subsequent time. Do you approve or disapprove of this law?

  • Approve 68%
  • Disapprove 20%
  • Unsure/refuse 13%

The poll was conducted by Curia Market Research in late February and early March and was based on the responses of 965 respondents. The poll has a margin of error of +/- 3.2 per cent.

This seems like strong support, but that is a loaded question – pre-loaded with “serious violent and sexual offenders who continue to commit offences”.

All third strike sentences so far have not imposed the maximum term as they have been ruled ‘manifestly unjust’ because the third strike convictions were relatively not serious.

Judges usually go to great lengths, especially at appeal level, to impose appropriate sentences based on many factors, including:

  • the seriousness of the crime
  • aggravating and mitigating factors
  • criminal history
  • whether the crime was premeditated or not
  • whether there has been a guilty plea
  • whether there is any noticeable remorse
  • need for deterrence
  • whether treatment has been undertaken for mental health or addiction problems
  • signs of rehabilitation
  • compared to similar crimes

For an example of the lengths judges go to in reconsidering sentences see a recent appeal SOLICITOR GENERAL v HUTCHISON [2018] NZCA 162 [12 June 2018]

Peters successfully played to support base over 3 strikes

While Andrew Little has taken a hit after his back down on repealing the 3 strikes legislation, Winston Peters will be feeling quite happy with himself – and many NZ First supporters and potential voters will also be happy.

But Ardern’s leadership of Government has also taken a hit.

Peters has played Little and won handsomely. And the timing of the Peters power play is smart (or fortuitous) too, just before Peters takes over as acting Prime Minister

Tracey Watkins (Stuff): Three strikes lesson – Winston won’t be a token prime minister

Little has been dealt a short, sharp and brutal lesson in real politik by the master of MMP, Peters.

In doing so, Peters has reinforced NZ First’s credentials with its supporters as a vital handbrake on Labour and the Greens, especially when they get too far ahead of public opinion, particularly on touch-stone issues like law and order.

Some valuable credibility for peters and NZ First.

And he has given warning that Peters will be far from a token prime minister whenArdern hands over the reins sometime in the next week or so to give birth.

It has been Peters’ bug bear for years that the big parties still act like first past the post governments under MMP.

…Little fell right into the same hole when he publicly announced two weeks ago he was taking a paper to Cabinet proposing to repeal the law, when he hadn’t even bothered to consult NZ First.

It should have been as obvious to Little as everyone else that repealing the three strikes law was anathema to a law and order party like NZ First.

Little’s face has copped the egg this time, but ‘everyone else’ includes Ardern and her office too. It must have been obvious to them that Little was heading for an embarrassing back down.

So did Ardern let Little walk into this? She and her advisers can’t have been blind to the obvious Peters position on this. otherwise it looks like a major oversight – incompetence.

Regardless of how this came about Peters heads into his role as acting PM with Little’s power pricked somewhat, with a clear warning to other Labour Ministers too.


Ardern is on RNZ now saying a 3 strikes repeal was ‘one small part’ of judicial reform. Trying to play down the debacle.

When pushed she concedes that the repeal is ‘off the table’, despite Little claiming yesterday he would still try to get NZ First support.

Ardern claims the public promotion of a policy that could never succeed ‘is simply democracy and MMP’. It’s a cock-up by Labour, and Ardern is as responsible for it as Little.

Ardern closes saying that the 3 strikes disaster speaks to the strength of the multi party Government. This isn’t a good example to promote.

Ardern – “absolute given” no announcements before Cabinet discussion

Prime Minister Jacinda has said it is “an absolute given” no announcements should be made by Ministers before Cabinet discussion  – except when it is “normal decision making process”.

After Andrew Little had to scrap his plans to scrap the 3 strikes legislation when it became obvious NZ First wouldn’t support it, Prime Minister Jacinda Ardern made it clear Ministers shouldn’t make announcements before discussing them in Cabinet.

From NZH:

Prime Minister Jacinda Ardern told reporters it was a “given” that ministers did not make announcements before discussing them at Cabinet.

“There’s always a given that we wouldn’t do that. It’s something that doesn’t really need requirement to be repeating. It’s an absolute given,” she said.

“Three strikes makes up only a very small part of a much wider agenda and we are continuing to pursue that agenda as a Government. None of these decisions are finalised until we have that discussion as Cabinet. All our ministers know that,” Ardern said.

Ardern is a bit liberal with her use of ‘absolute’, given her announcement (along with a Labour minister, a Green minister and an NZ First minister on oil and gas exploration permits without discussing it with Cabinet.

Stuff: No Cabinet paper written, no Cabinet decision made, in “political decision” to ban new oil exploration

Cabinet has made no decision on ending oil exploration, documents being released today will show, with April’s announcement made on the basis of a political agreement between the coalition parties.

On April 12, Prime Minister Jacinda Ardern led a group of ministerial colleagues into the Beehive theatrette to confirm news that the Government had decided it would offer no new offshore permits for oil and gas exploration, with onshore permits offered in Taranaki for as little as three years.

Although the news was delivered by ministers affected by the decision and in a forum usually used to discuss decisions made by Cabinet, politicians made the decision in their roles as party leaders.

Today the Government will release a series of documents generated in the making of the oil and gas exploration decision, but it has already confirmed to Stuff that no Cabinet paper was created and that Cabinet has not voted on the matter.

“There was no Cabinet decision,” a spokesman for Energy Minister Megan Woods said.

In a statement, Ardern defended the handling of the decision, but said it was not how most decisions would be made.

“The decision on future oil and gas block offers was a political decision made by the government parties. It was consulted on and agreed between the parties and taken to Cabinet for confirmation,” a spokesman for Ardern said.

“This is a normal decision making process when it comes to coalition wide matters, but does tend to be the exception rather than the rule.”

An “absolute given”that ministers did not make announcements before discussing them at Cabinet except when it was part of the  “normal decision making process” that is “the exception rather than the rule”.

 

 

3 strikes repeal struck out

Andrew Little had to retract his promise to repeal the 3 strikes legislation today. He conceded that he wouldn’t have the support of NZ First so didn’t have the numbers.

Making a premature announcement like this is quite a balls up.

Three Strikes repeal not going to Cabinet

A proposal to repeal Three Strikes is not going before Cabinet today on the basis that New Zealand First have indicated they would be unlikely to support it, says Justice Minister Andrew Little.

“I acknowledge New Zealand First has concerns about the Three Strikes repeal. The strength of this coalition is that change only occurs with the support of all three parties.

“Further work on a balanced reform package for a more effective criminal justice system that make our communities safer will be considered by the independent advisory panel to be appointed shortly, and progressed in August at the Criminal Justice Summit.

“We are committed to a meaningful and balanced programme of change and we will be consulting our coalition partners and the public on this over the coming months.

“The reality is that the justice system is not working and we need to make changes to make our communities safer,” says Andrew Little.

The justice system is working, but in some ways not very well so could do with some revisions. however Little needs to learn that you need to get the required support before making promises you may not be able to keep.

In reality retaining the 3 strikes legislation is unlikely to make a big difference. Courts have already overturned 3rd strike sentences as manifestly unfair (showing protections work), so the maximum penalties look likely to be reserved for the worst offenders most deserving of long sentences.

Stuff: Government’s three strikes repeal killed by NZ First

In a press conference on Monday morning Little tried to leave the door open on three strikes being repealed in the future, saying NZ First didn’t support a “piecemeal” approach and wanted to see the total justice reform package.

However, it’s understood NZ First MPs have been working on this issue for weeks. The caucus has no plans to budge on its long-held view of being tough on law and order after seeking feedback from its voter base.

That position is expected to be made clear after caucus meets at Parliament on Tuesday.

That position must have already been made clear to Little given his announcement today.

 

Justice Minister plans to repeal ‘3 strikes’ law

New Minister of Justice Andrew Little plans on repealing the ‘3 strikes’ law that has been one of ACT Party’s few big policy successes. It came into effect in 2010 largely due to the efforts of David Garrett, who struck out himself, failing to last a term.

Newstalk ZB:  Three strikes and it’s out: Labour scrapping controversial law

The three strikes law is itself to be struck out.

Justice Minister Andrew Little said it has had no impact on making the country any safer.

Under the law, judges must impose the maximum sentence on anyone that commits a third violent or serious sexual crime.

Little said there are better ways to prevent crime.

“Make sure that our correction system is doing the job we need to do, which is to change the people who have been anti-social, who have committed crimes, and stop them from doing that. In the end, that’s the way you make people safe,” he said.

Little plans to start the three strikes repeal by the middle of next year.

It will be interesting to see if the Government just repeals the law, or if they introduce different guidelines or law on sentencing.

New Zealand has one of the highest imprisonment rates inn the developed world.

I don’t recall Labour campaigning on repealing ‘3 strikes’, but last year Jacinda Ardern  described it as “an ugly piece of law” – Jacinda v David: Three-strikes law is no home run:

Last week a piece of legislation from 2010 reached a milestone – the first offender was sentenced under the three-strikes legislation.

You may remember this law. It was fairly controversial at the time, and was one of the ACT Party’s babies. David Garrett was the champion of the bill, and having now exited Parliament it was David Seymour who has been left to defend what I can only describe as an ugly piece of law.

I don’t use those words lightly, but when you have a combination of bad law, coupled with populism, I just don’t know what else you can call it. And that’s exactly what three strikes is.

Let’s be absolutely clear though. No one is for a moment implying that if you commit multiple offences that it shouldn’t be taken into account. But judges already have to consider previous convictions as an aggravating factor when they hand down a sentence.

All that the three strikes legislation did was remove the discretion they had over how they factored that in. And examples like this recent case highlight how clumsy the law now is as a result.

The ugly part, of course, is that a law like ‘three strikes’ sounds good – like we’re sending a hard message and that we will all be safer as a result. But what do you do when the evidence shows that that’s not what this law does? Do you fly in the face of facts and evidence just because of the perception? I’d like to believe Parliament is better than that, perhaps it’s time to show it.

So while not promoted as a core policy, and I can’t find any reference to it on the Labour policy website it looks like Parliament is going to strike out  ‘3 strikes’.

Here are the latest Three strikes statistics.

 

Update on 3 strikes

Graeme Edgeler has obtained better statistics related to 3 strikes offending and recidivism that suggests there is a bit of a reduction in recidivism rates that may or may not be due to deterrence from 3 strikes – due to longer sentences it may simply be that longer sentences delays the opportunity to re-offend.

Three Strikes five years on! Now with accurate numbers!

A month ago, I retracted a piece I wrote in 2015 looking at the first five years of the three strikes sentencing regime for serious violent crime, attempting to see how the first five years after three strikes compared to the five years before three strikes.

As detailed in that retraction, the comparisons I then made were invalid. The two sets of data I was comparing were not comparable. I now have this data, following contact by the Ministry of Justice after my retraction (and Nikki Macdonald’s excellent work in the Dominion Post) was published

The comparison between the years before and after the coming into force is less stark, but there remains a reduction in strike recidivism beyond that in strike crime generally.

The extent to which this fall can be attributed to three strikes remains anyone’s guess.

In the five years prior to three strikes:

  • 5517 people were convicted of an offence where that conviction would have been a ‘first strike’ had three strikes been in force at the time
  • 103 were convicted of an offence that would have been a ‘second strike’

In the first five years after three strikes came into effect:

  • 5248 offenders received a ‘first strike’ (that is, a “stage-1 conviction” under the three strikes sentencing regime)
  • 68 offenders received a ‘second strike’.

That’s a reduction in offences of about 5%, and a reduction of 34% in second strike offences, albeit on low numbers.

In addition, no-one was convicted of a third strikes in three strikes’ first five years, while four people were convicted of what would have been third strikes in the preceding five years, and two of them also racked up what would have been fourth strikes.

The bald numbers provide no evidence that the existence of formal strike warnings has a deterrent effect, and arguments about what caused.

Correlation but not necessarily causation.

Though the numbers are low, the lack of third and fourth strikes could well be a consequence of incapacity, rather than deterrence – a second strike conviction means the offender is ineligible for parole, so result in longer times spent in prison.

So the jury is still out on the effectiveness of 3 strikes.

But imprisonment numbers continue to increase, as do the associated costs.

3 strikes ‘an ugly piece of law’

Jacinda Ardern, in her weekly co-column with David Seymour, desrobes 3 strikesd as “an ugly piece of law”.

Stuff: Jacinda v David: Three-strikes law is no home run

You may remember this law. It was fairly controversial at the time, and was one of the ACT Party’s babies. David Garrett was the champion of the bill, and having now exited Parliament it was David Seymour who has been left to defend what I can only describe as an ugly piece of law.

I don’t use those words lightly, but when you have a combination of bad law, coupled with populism, I just don’t know what else you can call it. And that’s exactly what three strikes is.

It did seem to pander to a populist demographic – the ‘throw  away the key’ mob. But this didn’t translate into voter support for Act, who dropped from 5 MPs to 1 after the law was passed.

Let’s be absolutely clear though. No one is for a moment implying that if you commit multiple offences that it shouldn’t be taken into account. But judges already have to consider previous convictions as an aggravating factor when they hand down a sentence. All that the three strikes legislation did was remove the discretion they had over how they factored that in. And examples like this recent case highlight how clumsy the law now is as a result.

The ugly part, of course, is that a law like ‘three strikes’ sounds good – like we’re sending a hard message and that we will all be safer as a result. But what do you do when the evidence shows that that’s not what this law does? Do you fly in the face of facts and evidence just because of the perception? I’d like to believe Parliament is better than that, perhaps it’s time to show it.

Seymour responds:

Three strikes for violent crime is a good law. It doesn’t just deter recidivism – it removes the worst criminals from our streets, ensuring they can’t terrorise peaceful New Zealanders.

But 3 strikes offences are not just for violence – the infamous first 3rd strike sentence was for grabbing a female prison officer’s bum.

Parliament passed this law to reflect the public’s view that the judiciary has been lax on reoffending. The legal profession may have their nose out of joint over it but in a democracy the public has the ultimate say.

‘The public’s view’ is a bit of a stretch. The way democracy worked here is a party with 5 MPs did a coalition deal with National that allowed the 3 strikes legislation to be passed through Parliament. ‘The public’ didn’t have their views measured democratically.

As for the ‘bottom pinching’ case – Jacinda ignores how the judge invoked three strikes’ in-built safety valve (the ‘manifestly unjust’ clause), meaning the offender will likely be released on parole after a third of his seven-year sentence.

The ‘manifestly unjust’ clause has been used three times under this law – that could suggest the law is inherently unjust.

It’s true that early evidence is limited, but the figures point in the right direction – compared to before the law was passed, new violent offenders are reoffending significantly less often.

But the connection there is debatable.

Last year lawyer Graeme Edgeler posted on this –The Greg King Memorial Blogpost: Three Strikes, Five Years On (now retracted) – in which he said:

So strike crime is down around 20% since three strikes came into effect.

Claiming cause and effect over something like that is the type of intractable debate that you get into over the effect of longer prison sentences. But what we are looking at is not the general deterrent effect of three strikes (fear of punishment in the public at large), but specific deterrence: fear of punishment by those who have a conviction for strike offending who have been personally warned by a judge that further strike offending is treated very seriously.

Had the three strikes law been in place on 1 June 2005, the following five years would have seen 256 offenders receive second strikes.

Now, strike crime is down in general, but the ~20% fall in strike offending is dwarfed by the ~62% fall in strike recidivism.

But Edgeler has just retracted this Retraction: Three Strikes Five Years On.

On September 30 2015, I published a post: The Greg King Memorial Blogpost: Three Strikes Five Years On.

I retract that post. I am grateful to Dominion Post journalist Nikki Macdonald for her story published today looking at three strikes that determined that my piece was unsupportable.

The principal comparison I made in that post, between the number of second-strikes there had been during the first five years after three strikes, and the number there would have been in the five years before three strikes, had three strikes been in place five years earlier, is invalid. The pre-three-strikes data and the post-three-strikes data on which the post was based are not comparable.

The conclusions I reached in my post, as tentative as they were, are not supported by the evidence. I do not know what the correct figures are, but I have substantially overstated the number of second strikes there would have been.

The data he had used to base his original post on was inadequate.

So debate will continue on how ugly the law is that attempts to address an ugly part of our society, violence.

As for the ‘bottom pinching’ case – Jacinda ignores how the judge invoked three strikes’ in-built safety valve (the ‘manifestly unjust’ clause), meaning the offender will likely be released on parole after a third of his seven-year sentence.

So the law works, even in difficult scenarios.

It’s too soon to tell, except that ‘difficult scenarios’ have been the rule rather than exceptions so far.

But Seymour wants to expand 3 strikes to also cover burglaries.

In fact, ACT would introduce a three-strikes law for burglary, meaning third-strike burglars would be jailed for three years. Burglary mightn’t be violent, but it can be extremely traumatising for its victims.

Does it make sense to load our prisons up even more?

And burglaries will be harder to deal with. I don’t know how a prescribed law can take into account likely anomalies.

It’s common for burglary prosecutions to involve multiple offences. How would a straightjacket law deal with one prosecution and conviction for say ten burglaries once a recidivist was caught, and three separate prosecutions for three burglaries.

3 strikes was in part sold on the basis of protecting society from the ‘worst of the worst’ but is already much wider than that, and Act want to widen it even further.

What’s next – 3 strikes for speeding?

It’s odd that 3 strikes has become the one issue that Act have become identified with.  From their website:

Our vision

  • A free society: free trade, free speech, and personal and religious freedom
  • A nation that values personal responsibility, tolerance, civility and compassion
  • Small government, low taxes, secure property rights, and the law applied equally to all citizens

While 3 strikes laws try to enforce personal responsibility they don’t seem to be compatible with tolerance, civility and compassion.

Applying the law equally to all citizens is a difficult ideal to achieve, but 3 strikes laws  is hardly going to help.

Is the 3 strikes law working?

An in depth look at Stuff  – From bottom pinching to serious violence – is the three strikes law working? – (it is probably too soon to tell):

The very first third strike under the controversial 2010 law of escalating punishments for serious violent crimes played out the worst-case scenario opponents had predicted.

Bottom-pincher Raven Casey Campbell ticked all the “I told you so” boxes – a judge reluctantly imposing a disproportionate sentence for a comparatively minor crime causing no physical injury. Because the offence was Campbell’s third strike, Justice Toogood had to impose the seven-year maximum term for indecent assault, which spans everything from an unwanted bottom-pinch to a Malaysian diplomat following a young woman home and entering her bedroom with his pants and underwear down.

“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,” Toogood told Campbell.

Critics say the bottom-pinching case is absurd and reveals the law’s glaring design faults.

But proponents say Campbell’s case was simply the law working as it should. The sentence was not for Campbell’s bottom-grabbing but for his three accumulated offences, which included robbery and aggravated robbery. And the law’s in-built safety valve kicked in as it was supposed to.

The article looks at:

  • How the law works
  • The number of 1st and 2nd strikes so far
  • Disproportionality
  • Deterrence
  • Cost

At about $90,000 a year to keep someone in prison, Wood says it makes no sense to fund the most expensive accommodation for geriatrics posing no public risk.

However, just considering incarceration costs fails to factor in the high cost of crime, both in trial costs and the costs of injury, emotional harm and – in the case of murder – the lost potential of a life.

While three strikes warnings might not prevent further offending, longer prison terms inevitably will. However, Oleson says attempts to weigh the costs and benefits of the death penalty have delivered such wildly different results they seem meaningless.

Seymour says it’s too early to tell whether any costs will justify the public safety benefits. He’s open to a 10-year review, once enough cases have gone through the system to enable robust conclusions.

At its core, the three strikes debate remains a clash of ideologies.

“It’s an interesting puzzle,” Oleson says. “But the hard part is there are real people’s lives – offenders and victims – that are affected by these decisions.”

The debate will continue for years as more criminals work through to their third strike conviction.

3 strikes, 3 years for burglary?

Burglaries are a growing concern. yesterday Duncan Garner tweeted:

Clarification; on Saturday in I said burglaries were up almost 12% in one year. I was wrong. Stats NZ just told me it was 14%

Yesterday the Dominion Post editorial: No easy answer for burglaries

The police brass estimates that they currently get an officer to 70 per cent of burglaries. Unfortunately, they solve many fewer than that – about 9 per cent of those recorded.

On the face of it, a guarantee of attendance by the police seems an obvious response. Yet criminologists and those who represent police officers agree that simply attending burglaries does not offer a sure bet of improvement.

There are no witnesses to most burglaries, so catching the offenders is difficult. A low resolution rate is not unique to this moment, nor to New Zealand; it is, to some extent, just the nature of burglaries.

On the other hand, as criminologist Greg Newbold points out, sending officers to follow up on what most people regard as an invasive crime can be reassuring to victims. Failing to send them, meanwhile, can breed cynicism – among those affected, their neighbours, and perhaps even those committing the crimes.

It may not be as bad as it sounds.

Still, as Collins was at pains to point out a couple of days after her announcement, burglary numbers over the past year have defied the trend and leapt upwards – by about 12 per cent nationally.

Some of this increase appears to be down to a methodological change in how burglaries are counted. Some may be due to more scrupulous counting by the police in the wake of the scandal over doctored burglary counts in Counties-Manukau in 2014. Certainly other police statistics suggest that recent burglary numbers remain far lower than they were in the mid-1990s, despite a much larger population.

But we still have a significant problem.

The Police Association says it reflects deeper currents of drug and gang crime. Whatever the cause, and however hard the solutions, burglary is certainly a crime that causes public anxiety – and thus political peril. Collins’ populist intervention – and her decision to draw attention to a rising category of crime happening on her watch –  is a clear signal she is aware of that.

Collins should also be aware of a proposal from ACT’s David Seymour – 3 strikes for burglary. This is outlined in the latest ACT Free Press.

Burglary Up
Burglary is up and even National MPs’ electorate offices are now being burgled. The police minister says that the police will now attend every burglary, but what will that mean?  Police generally know what is happening on their patch and prioritise accordingly.  We doubt that attending every burglary will increase the resolution rate because most burglaries are carried out by professionals too smart to leave traces.  We wonder what other crimes police will now not attend to.

Unless the number of front line police officers is increased more time spent on burglaries will mean less time spent on other crime.

Three Strikes for Burglary
Earlier in the year ACT tabled its Three Strikes for Burglary bill, but other MPs objected to it being debated.  The policy is very simple: with resolution rates as low as they are, you have to commit a lot of burglaries to be convicted three times, so you should be sentenced to three years.  ACT’s Three Strikes for violent and sexual offences has been a success at reducing reoffending for those crimes.  ACT will continue campaigning for a Three Strikes rule for burglary.

Is 3 strikes, 3 years for burglary worth considering? Should we keep recidivist burglars off the street and out of our homes for longer?

Life Without Parole appeal

Last week the Court of Appeal ruled against the Crown in two cases involving the 3 strikes legislation.

Court of Appeal Judgment R v Harrison and R v Turner

The Court of Appeal media release aimed at assisting understanding of the judgment:


R v SHANE PIERRE HARRISON (CA691/2014)

R v JUSTIN VANCE TURNER (CA114/2015) [2016]

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document.

The Court of Appeal has today dismissed the Solicitor-General’s appeal against sentence in the case of Shane Harrison but allowed the appeal against sentence in the case of Justin Turner in part, increasing the minimum period of imprisonment of his life sentence to 17 years.

These appeals were the first to challenge the application of s 86E of the Sentencing Act 2002, part of the so-called “three strikes” legislation. Section 86E requires a person convicted of murder after committing a “serious violent offence” (a “stage-1 offence”) to be sentenced to life imprisonment without parole, unless that would be manifestly unjust. In the High Court the sentencing judges, Mallon and Woolford JJ respectively, found it would be manifestly unjust to sentence Mr Harrison and Mr Turner to a whole of life sentence. A Full Court of the Court of Appeal has agreed with this conclusion.

The crux of the appeals turned on the meaning of “manifestly unjust”. The Solicitor-General contended that manifest injustice would be established in rare and exceptional circumstances only such that the exception was a very narrow one. Section 86E created a statutory presumption that there should be a higher level of punishment for repeat violent offenders, irrespective of their actual culpability. This was the basic rationale behind the three-strikes regime. The Solicitor-General accepted that the manifestly unjust exception involved a 2 judicial discretion to ensure that the presumption in s 86E did not infringe s 9 of the New Zealand Bill of Rights Act 1990 — the right not to be subjected to disproportionately severe treatment or punishment.

The Court of Appeal considered the likelihood of grossly disproportionate sentences arising from the application of s 86E to be high. A key reason included the breadth of the qualifying catchment, namely a previous conviction for a “serious violent offence”. The offences within that definition number 40 and are extremely wide-ranging, producing an infinite range of circumstances of offending.

The consequences of the application of a whole of life sentence also contributed to the potential for gross disproportionality. Such a sentence provides no opportunity for review. For a sample of actual murder cases from 2009–2010, the length of time spent in prison, on average, was calculated to be upwards of 35 years, significantly longer than an offender sentenced for murder would usually serve.

Given the high likelihood of a sentence imposed under s 86E being grossly disproportionate, the Court concluded that the meaning of “manifestly unjust” must be interpreted broadly. Its application requires an intensely factual consideration of the circumstances of the offending and the offender, including: the sentence that would otherwise be appropriate for this offending, the consequences of a whole of life sentence, the actual culpability of the offending and the risk posed by the offender. Ultimately, the judicial approach to the scope of the manifestly unjust exception is intended to avoid wholly disproportionate sentencing outcomes.

Applying this approach to Mr Harrison’s and Mr Turner’s cases, the Court agreed it would be manifestly unjust to impose a sentence of life imprisonment without parole in each case. For Mr Harrison, the Court agreed with Mallon J that the low culpability of Mr Harrison’s stage-1 offence, together with his attempts to rehabilitate, his age and the views of the victim’s family, would have made a whole of life sentence grossly disproportionate. The Court also noted that Mr Harrison was only a secondary party to the murder.

In Mr Turner’s case, the Court concluded that although the circumstances of his offending were brutal, his age, guilty plea and mental health difficulties culminated to make a whole of life sentence grossly disproportionate. However, the Court agreed with the Solicitor-General that the appropriate minimum period of imprisonment was 17 years rather than 15 years as imposed by Woolford J.

Mr Harrison and Mr Turner also sought a declaration of inconsistency with the Bill of Rights Act, contending both s 9 and s 22 were breached by s 86E of the Sentencing Act. The Court declined such a declaration on the basis that a rights-consistent interpretation of s 86E was possible. The Court noted, however, that if the manifestly unjust safeguard did not operate to prevent gross disproportionality, this could be addressed at a later time.


As an ACT MP David Garrett was the driving force behind the 3 strikes legislation. He responds to this decision in detail in a guest post at Kiwiblog: Guest Post: Appeal Court refuses to apply LWOP