3 strikes law aimed to protect

David Farrar at Kiwiblog writes in A third strike on the recent sentencing where a man who grabbed a female prison guard by the bum was given a maximum seven year sentence but the judge used the ‘manifestly unjust’ provision to remove the ‘no parole’ requirement.

I have no problem with this sentence. A third strike is not just about the most recent offence but also the previous offences. He seems an unrepentant criminal and we’re safer with him in prison – even if the prison officers are not.

The purpose of is a deterrent, and this case should act as one.

But in comments the architect of the 3 strikes law, David Garrett, says that victim protection was the primary purpose.

The PRIMARY purpose of 3S was always to protect victims – deterrence was and remains a secondary purpose…if it occurs, that’s a bonus.

This guy is now in jail for about three times as long as he otherwise would have been but for 3S…the public is therefore protected from him for at least three times longer.

If his lawyer (who I know well) is correct in his view, this sentence is a real game changer for him and he will not reoffend when he is released. If he does, and it is his preferred crime of robbery or aggravated robbery, it is back to jail for him for seven or 14 years respectively.

The 3 strikes law was also supposed to keep ‘the worst of the worst’ criminals off the street, but that is not the case here.

When he committed his third strike offence while in prison Campbell had been serving a 3 year, 5 month sentence for an aggravated robbery, after being convicted in April 2014 and getting his second strike warning. His first strike conviction was for robbery and demanding to steal in 2013.

Garrett also said he was “quite comfortable” with the judge using the ‘manifestly unjust’ provision.

But let me put on record that I am quite comfortable with the Judge’s exercise of the “manifestly unjust” proviso in this case: this is exactly the kind of case it was designed for. No-one – least of all me – would be comfortable about seven years for what is unquestionably a low level indecent assault.

So Garrett agrees that in this case a maximum sentence with no parole for a low level indecent assault would have been manifestly unjust.

This is the first time a third strike sentence has been given. Time will tell whether ‘manifestly unjust’ is the except or the norm.

All of that said, the following must also be taken into account – things the MSM strangely didn’t mention: Campbell has a number of non strike violent offences to his name, including being found with a knife in a public place without lawful purpose; his first two strikes were robbery and aggravated robbery respectively, the second committed while he was on parole for the first; a probation officer assessed him as a person whose violence is growing worse, and portrays him as a real risk to society.

Lastly, as I said on Nat Rad yesterday, the Judge’s remarks actually neatly underline why the law was necessary in the first place. The Judge said that absent 3S, Campbell would have got 12 months at most. The Sentencing Act automatically reduces that sentence to six months, with parole at one third, i.e two months.

I believe the public were and remain sick of violent offenders getting two months in jail; the proverbial slap on the hand with as wet bus ticket. Most people – when they know the full facts of this case – will be quite happy with the sentence.

I don’t know about ‘most people’ but the judge was obviously quite unhappy with the sentence he was required to give. The legal fraternity in general seems to be unhappy with the law and with this sentence.

Law professor Andrew Geddis wrote in Three strikes and you still get out at Pundit:

New Zealand has had a “three strikes” sentencing regime in place for some six years now. It was controversial when introduced. It’s effectiveness is the subject of some debate (I urge people to read Warren Brookbanks’ excellent Greg King Memorial Lecture Paper here). But what is indisputable, I think, is that the judiciary really, really doesn’t like it.

The Brookbanks lecture is worth reading.

But Garrett took a swipe at Geddis:

Geddis’ piece is disingenuous as usual: Unless Campbell really acts up in jail, he won’t serve anything like seven years – he is eligible for parole in two years three months, so is likely to be out in three years at most.

Secondly, Geddis seems to think no-one can be a victim of a crime committed inside jail (read the piece)…The victim in this case was a lowly paid female Corrections Officer who remains badly affected by what happened, and had time off work as a result of it.

The victim said she hoped that the court would rule non-parole as manifestly unjust. From the victim impact statement:

[11] About three weeks after the assault, the victim provided a victim impact statement. She said she felt angry, frustrated and totally degraded by the offending. She had been left feeling vulnerable and uneasy when performing her work duties.

[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.

It will probably some time before we get a number of third strike sentences on which we can judge how the 3 strikes law works out in practice – it can be presumed that the worst of the worst criminals will have lengthy first and second strike sentences so unless the offending happens in prison (as in this case) the worst won’t be out and able to offend again quickly.

So it is likely to remain a contentious and unproven law for some time.

Key points from the sentencing on this case: Third strike sentence “grossly disproportionate”

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

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