Legal Beagle by Graeme Edgeler

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, 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.

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), and 68 offenders received a ‘second strike’.

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, and 103 were convicted of an offence that would have been a ‘second strike’.

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. 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.

In its response to me, the Ministry cautions against firm conclusions:

“Please note that although this data shows that reoffending has reduced since the Act came into force, there are several factors affecting numbers of convictions and hence people convicted over the 10 year period in question. These include changes in policing practices (for example, the Policing Excellence Scheme: www.police.govt.nz/about-us/programmes-initiatives/policing-excellence), an overall reduction in crime and a reduction in the number of people prosecuted and convicted from 2009 to 2014. This means that any reduction in offending cannot be solely attributed to the Sentencing and Parole Reform Act 2010.”

We’re now at the level where alternative explanations become more likely. Our first third strike (for offending leading a conviction since the five year period of comparison) is instructive. Raven Campbell was convicted of an indecent assault committed on a prison guard. A conviction for a crime committed in prison was always likely to be the first third strike. Few prisoners convicted of serious sexual or violent crimes will have had the opportunity to have committed a strike offence, been convicted and sentenced (probably to prison) then paroled, to be convicted of a new crime committed after the first, then serve every day of a second strike sentence (for which there is no possibility of parole) before being released involving to commit further serious offending, all within five years.

In addition to the Policing Excellence scheme suggested by the Ministry of Justice (in part, it created a greater Police focus on prevention), any number of other alternative explanations for reductions in recidivism rates for serious violent crime within five years of first conviction: random variation in offending levels, longer sentences for serious offending; changes to parole laws, or to the approach of the New Zealand Parole Board to parole decisions among others. are possible explanations for reductions in recidivism rates within five years of first conviction. We’ve also seen the rollout of extended supervision orders for child sex offenders, which started in 2004 (although child sex offences make up only a small proportion of serious violent crime, and tend to have low recidivism rates).

Establishing whether something like three strikes has had an effect on recidivism rates, or offending rates is hard. The bald numbers tell us little. It is something that could be investigated further, but would need the type of resources I do not have, and I suspect would also research agreements to enable access to information that would be otherwise be withheld under the OIA for reasons of personal privacy. Mostly, I’m just here to point out the problems with others’ arguments. Too many arguments about criminal justice focus on rhetorical effect, or run the risk of falling away when the crime rate changes by a little (if you’re on Twitter, follow Fordham Professor John Pfaff):

Minor hope for 2017: never again see “prison down, and so is crime” arg based on trends. Bad causal reasoning, ticking time bomb for reform. https://t.co/seATkZAO6q

— John Pfaff (@JohnFPfaff) December 30, 2016

I can't take this much further, but there are some other slightly noteworthy notings from the recent OIA releases.

In explaining why it is difficult to come up with comparable data, the Ministry of Justice noted:

Under the Act, warning may be given either when guilt is established (which is usually when the conviction is entered) or at the sentencing date. However, as the time of the giving the warnings is at the discretion of the judge, it is impossible to estimate the timings of when warnings would have been given pre the implementation of the Act.

This accords with how I’ve seen the Act occasionally work in practice – warnings sometimes aren’t given upon conviction, but this isn't a correct statement of the law. Section 86B of the Sentencing Act is clear:

86B Stage-1 offence: offender given first warning

(1) When a court, on any occasion, convicts an offender of 1 or more stage-1 offences, the court must at the same time—

(a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning…

When a warning is given is important, because an offence will only receive a higher-level warning (with the consequent parole and sentencing effects) if it is committed after the warning was entered. It will not be common, but there will have been instances where a defendant has avoided more serious strike consequences because a judge has exercised the discretion as to timing that the Ministry of Justice says they have.

In news from a wholly unrelated OIA request I made of the New Zealand Defence Force earlier in the year, I can confirm that former Navy Commander Philip Wiig, who was convicted at a Court Martial of an indecent assault, did not receive a first warning when he was convicted, or sentenced. Although indecent assault is classed as a “serious violent offence” under the Sentencing Act, not all parts of the Sentencing Act apply to Courts Martial, and the three strikes bit is one part that doesn’t. This would apply even if they charge faced was more serious: no conviction at a Court Martial has strike consequences. Now, I oppose three strikes, but I can’t see a particularly good argument that someone with a conviction for a strike offence following a Court Martial should be in a better position if subsequently convicted for further serious offending (whether in a civilian court, or a military one).

Far from the biggest deal, but I like my laws to be consistent where possible, even when I oppose them.

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 post was based on information provided to me in two OIA requests I made of the Ministry of Justice. I like to think that my request was drafted sufficiently clearly that the Ministry of Justice would know that the data I was seeking needed to provide a fair comparison, however this appears not to have been the case.

In relevant part, my request was:

I would like to be able to compare these numbers to the the previous five years (essentially looking at what the numbers would have been had the three strikes regime commenced five years earlier), so to enable a comparison, please also provide the following information:

…

How many convictions were there between 1 April 2005 and 31 March 2010 for a "serious violent offence" that was committed after a conviction had been entered for an earlier serious violent offence that was itself committed after 1 April 2005?

…

In respect of all questions I am asking only about offences committed by someone who was at least 18 at the time of their offending.

If you have any questions, please do not hesitate to get in contact. I have chosen the date ranges as they cover the same period before and after the entry into force of the three strikes regime, if your records are collated in a different way (e.g. calendar year), please feel free to respond with information in that way instead, but it does seem important to cover the same amount of time before and after the change to have a fair comparison.

In response to a question from Ms Mcdonald seeking to confirm the numbers released to me were comparable, the Ministry of Justice advised her that “data was extracted based on the date the charges were laid, irrespective of when the offences were committed or when a conviction was entered.” This is obviously important when drawing a comparison with three strikes, as the date of offending and the date of conviction are fundamental to whether there are strike consequences.

I am unsure why I was provided information about charges that were laid during the relevant time period, irrespective of when he offences were committed or when a conviction was entered in response to my request. Admittedly I am biased, but at least on my reading of my request, I drew that distinction.

Clearly, before publishing by post, I ought to have double-checked with the Ministry of Justice that the information that was supplied was the information that I had intended to seek (and still think I did seek) as it appears that upon being asked to do so, they have been able to confirm it was not relatively quickly.

When publishing information, I try to be careful to ensure that it is accurate. I am sorry that you have been misled by something I have written.

Update 2 January 2017: After I published this post, the Ministry of Justice got in contact, apologised for failing to meet the high standards they set themselves, and offered to provide comparable data. A new post, with a fair comparison, is up here.

Sometimes a law change is so important and so urgent, that Parliament feels it needs to pass it immediately, without the possibility for select committee scrutiny, and public submissions. Today, we got some insight into what that threshold is.

And it seems that National, and ACT, and Labour, and the Greens, and New Zealand First are all in agreement about this. The type of law that is so important, and so urgent, that it should be passed without ordinary scrutiny, prohibiting citizens from having a say includes Nuk Korako’s so-called “lost luggage” bill.

Now, that bill did basically nothing, but it could have been amended so that it merely did next to nothing. In fact, I’d started writing a submission on the bill pointing that out. But so urgent was the law change, Parliament unanimously decided that none of us should be able to have a say.

The point of the bill was supposedly to update the process for Airport Authorities selling off unclaimed lost property. It did not do a good job of that. And, actually, Parliament has had some experience of how to update the laws around the conduct of public lost property auctions for the Internet age. When Parliament passed the Policing Act, they changed it so that Police had the option of selling goods at an online auction.

This is good. Selling some types of items at an online auction site is likely to increase the amount of money received for them, and when we’re talking about public assets (which unclaimed lost property is), giving those tasked with looking after those assets powers to best realise public benefit from them is good.

But I will now never get the opportunity to finish that submission, and, if we ever want this very minor, but still slightly positive law change enacted, Parliament will have to change the law again. All because Parliament agreed to shortcut the normal process for passing law.

Now, I agree with pretty much all the criticisms of Nuk Korako’s bill. It was not worth spending Parliamentary time on it as a separate bill, and even with the minor change I would have proposed given the chance, it would still have been much better to simply wait until the Airport Authorities Act was next updated, or included in a statutes amendment bill.

Now, that’s what happened here, but it happened after the statutes amendment had been to select committee, too late for anyone to have a say on it.

Now, if Parliament really thought Korako’s bill was such a waste of time, and inappropriately dealt with as a separate bill, it’s solution was to vote it down at first reading, not to short circuit the legislative process to enable it to be passed without public scrutiny. And with even ACT calling the legislation a waste of time, it seems likely that it would quite properly have never progressed past a first reading. Not all that much Parliamentary time would have been wasted (likely around 30-40 minutes), and the change, if still thought necessary, could have been adopted into a later statutes amendment bill, or wider amendment to the Airport Authorities legislation.

But more important than the quick adoption of Korako’s lost property bill, was that it was not the only one that Parliament decided to add to its just-about-passed Statutes Amendment Bill this morning. It also adopted Matt Doocey’s Companies (Annual Report Notice Requirements) Amendment Bill, which changes the requirements around companies posting out hard copies of their annual reports.

This was a law change that National MP Chris Bishop was adamant was sufficiently controversial that inclusion in a statutes amendment bill was inappropriate, and it’s now not only been included in a statutes amendment bill, it’s been included in one without select committee scrutiny.

In a sense, the adoption of this change without select committee scrutiny is worse. There was quite a bit of scrutiny of Nuk Korako’s bill by members of the public. I don’t know that there’s been any of Matt Doocey’s bill. I’ve had a quick look, and cannot see any flaws, but it is not an area of the law with which I am especially familiar, and I’m not going to guarantee you that there isn’t some minor mistake in it that will need to be fixed.

Which is the point of the Select Committee process. The drafters of just about every bill that goes to select committee see no issue with the words they’ve written, but close analysis by MPs, officials, and members of the public, often pick up little (or big!) errors. Amendments that are included in Statutes Amendment Bills are supposed to be short, technical and non-controversial, but a surprising of statutes amendment bills will have one change or another that either the Law Society, or officials, or someone, find some minor issue with that needs to be changed. And I'm betting that at the point at which our MPs unanimously supported the change all voted in favour of Doocey's bill avoiding select committee consideration, our MPs were not certain that his bill would not be one of them. It’s probably fine, but probably shouldn’t be good enough.

We get something out of this all, at least. We will know that, next time the opposition complains that the government is passing laws without select committee scrutiny, what the standard is. And we can simply point them to this, and tell them to go away.

It’s over two years since then-Minister of Transport Gerry Brownlee boarded a plane in Christchurch, after entering a secure area through a no-entry door, skipping past the security check.

I spent time that day on Twitter, trying to work out what law Brownlee might have broken (I couldn’t find one), and ended up writing a post, without really getting to the bottom of it. My curiosity piqued, I requested a copy of the Civil Aviation Authority report into the events under the Official Information Act. I make a few OIA requests, and have a pretty good track record of, eventually, getting the information I’m after. I’m rarely in a hurry, and when things are redacted, it’s usually for a reason that seems justifiable.

This time, however, the response I got was entirely unhelpful. I wanted to know why a regulatory agency believed an offence had been committed, and it had redacted all its legal analysis. Judges don’t tend to do that when issuing their reasons, and it seemed a little off that a regulatory agency could decide that a criminal offence had been committed, decide to impose an infringement fee rather than prosecute, and thereby inoculate their decision, and their legal reasoning from public scrutiny. So, I think for the first time (or at least, my first time other than as a lawyer), I complained to the Ombudsman about.

I’m glad I did. I got a much-less-redacted copy of the report last week, and not only was my curiosity satisfied, I confirmed that the CAA sees quite a few of the same issues with New Zealand’s aviation security rules that I saw two years ago.

So, what law did Gerry Brownlee break? Oddly, it has nothing to do with his not going through security screening. Instead he was determined to have been in a security area without an airport ID. That probably seems like an odd law to break, because what passenger has an airport ID? But this offence has an exception for people who are in a security area for the purpose of joining or leaving a flight if they have a boarding pass for that flight.

And Gerry Brownlee didn’t have a boarding pass.

That’s it.

If Gerry Brownlee had the Air New Zealand app on his phone, his electronic boarding pass would have meant he hadn’t committed the offence the CAA say he did. That he didn't pass through security screeening is legally irrelevant. He got an infringment notice, and had to pay a $2000 infringement fee because he got his boarding pass at the gate.

Now, I feel I ought to front up, and admit that I have committed the offence Gerry Brownlee committed. I once saw my nephew and niece off at the departure gate when they were travelling as unaccompanied minors.

And we now know that the CAA acknowledges that this is illegal:

Of note, it is not currently a requirement that persons who pass through an AVSEC security screening point have to show their boarding pass to the AVSEC Officers. Clearly there are occasion when person may pass through a security screening point when they do not hold a board pass i.e. parent seeing off their unaccompanied minor on a flight, person wanting to see off a passenger and having coffee with them airside, etc.

While these persons may not be in technical compliance with the [Civil Aviation Rules] as they are not deemed to be passengers in possession of a boarding pass, the fact is they have been screened, unlike Mr Brownlee and his aided, and therefor the level of aviation security risk is low.

There are rules requiring people entering security areas to pass through security screening, but the rules do not create a criminal offence, or even an infringement offence, for those who do not. The CAA looked at whether it could charge the offending under as a “breach of statute” for failing to go through security screening, but decided it would be face difficulties (the breach of statute offence is essentially a holdover from a time when our laws were drafted less voluminously, and could be used when Parliament clearly intended something to be a crime, but didn’t provide a maximum sentence). I concur.

It seems clear, and the CAA appears to agree, that law does not actually provide an offence which covers passengers who are in airport security areas without having gone through security screening.

This seems odd. It isn’t to say there aren’t consequences. If you don’t go through security, they shouldn’t let you on your flight. And if they let you on a flight, they’re supposed to get everyone off the flight, and take them through security again before it can take off, but there doesn’t seem to be an offence in our air travel legislation that covers the individual's actions, while there is an offence that makes it illegal for parents to wait with their kids before they fly as unaccompanied minors.

And maybe, if anything good is to come from Gerry Brownlee’s escapade, we could fix that?

I have a half-written post on the sentencing of Nikolas Delegat. Since the news of the sentence became public I’ve read the news reports, and responded to comments on twitter and Facebook.

 The sentencing seemed utterly unremarkable. I planned to say so. A first-time offender, 18 years old at the time of the offence, facing a charge of assaulting a Police Officer in the execution of her duty (which carries a maximum sentence of 6 months imprisonment) is simply not going to get a prison sentence after a guilty plea, at (technically) the first opportunity. And not qualifying for a prison sentence means home detention is out too. The maximum number of hours of community service someone can be sentenced to at one time is 400 hrs. You get a 25% discount for an early guilty plea. That makes it 300 hours. Add reparations on top of that. Easy. I was going to lay the blame on the police/prosecution for agreeing to guilty plea to such a minor charge if they wanted to complain about the sentence afterward.

But this isn’t that blog post. Because, as careful as I am on Twitter, I’m more careful when I blog. And part-way through the writing of my blog post (which to be honest, was going to carry little more information that the preceding paragraph) I figured I should read the sentencing notes. They’re rather sparse, because the judge also issued a judgment on Delegat’s application for as discharge without conviction. He lost that, and a conviction for violence is a pretty big penalty by itself if you’ve no previous record, and I was going to say so.

That blog post will remain uncompleted, merely summarised above. Because I have read the judgments, and I now know what Nicholas Delegat was actually convicted of. I apologise to the New Zealand Police for the tweets and comments I have made suggesting that it was their fault, or that of the prosecution, that a sentence of imprisonment was never even a remote possibility given that they agreed to a charge of assaulting a police officer in the execution of their duty. Because it turns out they didn’t think the assault so unserious so as to agree to a guilty plea to that most minor of all assault charges.

Oddly, I’ve had (I think) three conversation over the last few weeks with different people about Gell-Mann amnesia. It seems I am as prone to it as everyone else. Thankfully, I think I admitted that it all my conversations about it. It’s the observation that when the news media cover something you are intimately familiar with, you will almost always notice glaring errors, but when you read or watch a different news story, even in the same paper or bulletin, about an issue with you are unfamiliar, you will forget what you just noticed, and assume the basic facts in the story are true.

Police did not agree to reduce a more serious charge to a charge of assault  or assault on a Police officer, they agreed to reduce a more serious charge to a charge of aggravated assault. The maximum penalty for assault on a police officer is six months in prison. The maximum penalty for aggravated assault is three years in prison. It is not clear, but my current guess (which I base on a Herald editorial I’m about to criticise) is that the most serious charge originally faced was probably aggravated injury.

What of that editorial? I shouldn’t be too harsh, as it was the reporting that made so little sense, that it encouraged me to seek the judgment early in the process of composition. The way charges are described in charging documents, which tends to make it into on-the-fly sentencing notes as here, bugs me a bit, and can be profoundly misleading to a lay reader trying to match it up with a particular offence. The judgments describe the offending as the Herald did, and I suspect the Herald was led into error on that basis. But the judge also mentions the section under which Delegat was charged: section 192(2) of the Crimes Act.  The heading of section 192(2) of the Crimes Act is "Aggravated Assault". That should be a clue that the Herald editorial makes a couple of exceptionally odd statements:

He first appeared in court five days after the attack when he was charged with the aggravated assault of Kane, an offence carrying a maximum sentence of seven years' imprisonment.

Aggravated assault carries a maximum sentence of three years’ imprisonment.

The Editorial continues:

…the case went back to the Dunedin District Court in June, when the aggravated assault charge was downgraded to assaulting a police officer with intent to obstruct her in the execution of her duty. The offence carries a three-year jail term.

The charge of assaulting a police officer acting in the execution of their duty carries a maximum of six months’ imprisonment. But the words do also describe the elements of the offence of aggravated assault. Such double-ups aren’t that unusual: the elements of summary offences act common assault (max 6 months) and the elements of the charge of common assault in the Crimes Act (max 1 year) are identical. But nonetheless, it is a charge labelled as aggravated assault in the the Crimes Act that Nikolas Delegat was convicted of.

The misunderstanding permeating and emanating from the media lead to a cartoon (I'm told by Moreu, and appearing in the Timaru Herald), which is particularly unfair to Minister of Police Judith Collins.

 

The Minister of Police shouldn’t be commenting of sentences before the appeal period is up in the first place, but criticising a Minister for not holding firm on the proposition that people who assault cops should be charged with the more serious aggravated assault charge (rather than the less serious assault on Police charge) is ridiculous when you are discussing a case where the person pleaded guilty to a charge of aggravated assault.

So, news media, you suck at this. Why, in the biggest criminal justice story in New Zealand for several days, did not a single news article (well, not a single news article accessible on google news at any rate) mention what the person at the centre of it was actually convicted of? Several news articles mention both Nikolas Delegat and “aggravated assault”, but only ever in the context of it being the charge he originally faced, which appears not to be true..

Stuart Nash, you suck too, assuming that the quotes from you in this Herald article is accurate (and, because I already seem to have forgotten what I’ve just written, my assumption is still that it is). First, you shouldn’t really be calling on the Government, and especially the Minister of Police to interfere with a prosecution, which you are reported as doing here:

"The Prime Minister and the Police Minister must come out and condemn the sentence as totally inadequate and state that Crown Law will appeal. This would send a very clear message that this type of behaviour against police will not be tolerated by our communities and offenders will be punished accordingly."

But mostly because, in light of the actual facts in this case, this a is a monumentally stupid criticism to be reported as making after someone has been convicted of aggravated assault:

"The proper charge for punching a police officer is not plain assault, but aggravated assault, which includes attacking an officer in the line of duty and carries a maximum jail term of three years."

And, of course, I suck too.