Legal Beagle by Graeme Edgeler


David Garrett wins

I blame Kim Workman. Had he not gotten smart with his Official Information Act requests – the ones that found that the version of three-strikes introduced would have saved precisely none of the lives ACT were trumpetting prior to the election – the highly emasculated form of three-strikes as it was introduced may well have passed. It would only even have effected a very small proportion of the criminal population – the really really bad ones. Not any more.

The automatic life sentence for all third strike offending is gone, but so is the old definition of a strike. No-one should be under any illusion that this means the scheme as amended is in a lesser form than that introduced. It is not. It will affect a far greater number of offenders, and impose life without parole on a far greater range of offenders.

Prior to the election, National's policy was life means life for the worst murderers (maybe two a year). They now appear to have adopted a policy of life means life for the majority of those convicted of murder and manslaughter.

Not all murders, certainly, and not right away (in no respect is the law retrospective) but more than any reasonable definition of “the worst of the worst”, and far more than National's pre-election definition of “the worst of the worst”.

Of course, I haven't seen legislative language – only a media release and news articles almost certainly cribbed from that media release. There may be nuances that haven't carried into the public announcement. But it seems to me – from the public announcement – that second-strike murder and third-strike manslaughter (even where the first strike might have been community service ordered after a guilty plea following a drunken grope twenty years earlier, or even where offending was so minor that it has been clean-slated) will result – in all but the most truly exceptional of cases – in life sentences without the possibility of parole.

Kim Workman is doubtless working on his OIA request as you read, and perhaps I've over-estimated the proportion of murderers with one prior serious conviction (and manslaughterers with two). So it may not be that bad. And we'll probably have this information before the bill passes, so there can actually be an informed debate.

That is one of the good great things about this announcement. The substantial lowering of the definition of a strike – removing any requirement for the offending that results in the warning to involve an actual prison term (let alone one of at least five years) – means that the law that it seems is now likely to pass is a very different law from that which was introduced. And the Government is going to recommend to the select committee that it reopen submissions on the new law. This is an exceedingly rare occurrence, but it shouldn't be. I look forward to having a shot at the changes – there are doubtless still further changes.

The changes themselves:

1. the definition of strike is to be changed to any conviction for a serious offence (as introduced, this was any conviction for a serious offence that resulted in a prison term of at least five years).

2. the definition of serious offence has changed somewhat. The basic rule – as before – is “any violent or sexual offence in the Crimes Act with a maximum sentence of at least 7 years”. But there are exceptions: bestiality was never in; incest is now out, and so too is (simple) assault with intent to rob; aggravated burglary – which has always been in – is still there, but it isn't a crime involving sex and isn't necessarily a crime involving violence.

3. sentencing for the first serious offence (or rather, the first serious offence committed following the enactment of the law) is as it currently is.

4. sentencing for the second serious offence is as it currently is, but the sentence will be ordered to be served without parole (this is where the life without without parole for second strike murder comes in – the normal sentence for murder is life).

5. sentencing for the third serious offence will result in the maximum sentence available for that offence being imposed, unless is it manifestly unjust to do so (manifest injustice is a very high threshold – don't place too much hope on it to avoid serious injustice). This sentence too will be ordered to be served without parole (this is where life without parole for manslaughter comes in – the maximum sentence for manslaughter is life).

6. Finally, the initial proposal of the Sensible Sentencing Trust and ACT's to include smacking as a strike offence has still been rejected.

But – even in it's now much stronger form – this law is still far short of California's three-strike law. It doesn't mandate life sentences on all third strikes. It doesn't apply to crimes committed before it was passed. It doesn't apply to multiple crimes punished at the same time. It doesn't apply to really minor offending – or even serious, but non-violent, offending. David Garrett has – I think credibly – claimed that his initial draft was what three-stikes opponents in the US were fighting for. That claim is even truer now.

I wasn't a big fan of it in its form as introduced, and I'm even less of a fan of it now, but for the moment my thoughts on how to make it slightly more palatable include:

1. limiting strikes to offences resulting in prison terms – even if five years was considered, on reflection by National, to be too long, setting it at a level somewhat above mere conviction might still be acceptable to them.

2. allowing the test for manifest injustice to be invoked on strike one. If offending is of a nature that it is appropriately charged as one of the defined serious offences.

3. limiting strikes to offending punished in the indictable jurisdiction – if offending is serious enough to count as a strike, the prosecution and courts should treat it seriously.

4. allowing the possibility of parole for second strike murder, at least where the first strike involved a sentence of less than five years' imprisonment. This was National's pre-election policy, and is largely consistent with ACT's (who cared much more about third-strike consequences).

5. setting a lower standard than “manifest injustice” before departure from the mandatory components of the scheme. Manifest injustice is a really really high threshold to meet – allowing a little more discretion is a good idea – even if you've decided that judges shouldn't be judging any more.

6. do something about manslaughter. I'm not sure what, but giving a prosecutor the power to seek life without parole for a drink driving, or dangerous driving, causing death charge seems excessive. Some manslaughters you want to count as as strikes – some (e.g. gross negligence – not even recklessness – leading to death during a surgery) you really don't.

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