Legal Beagle by Graeme Edgeler

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Legal Beagle: David Garrett wins

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  • Kyle Matthews,

    From http://www.netlaw.co.nz/crime.cfm?pageid=348:

    "Aggravated Robbery is one notch up. It is robbery with one or all of the following three things :

    Grievous bodily harm is caused. (This means serious harm)

    More than one person is involved (Robbery by two or more people)

    A Weapon is used (Simply being armed is enough)"

    I think they mean "at least one of the following three things". Presumably if you have two, but not the third, it still applies.

    Since Nov 2006 • 6243 posts Report Reply

  • Ngaire BookieMonster,

    I by no means know the legal specifics, but I think it's almost any object used in a threatening manner.

    i.e. not just a gun, or knife, for example.

    At the foot of Mt Te Aroh… • Since Nov 2009 • 174 posts Report Reply

  • Ngaire BookieMonster,

    I think that aggravated burglary and aggravated robbery are two different things?

    At the foot of Mt Te Aroh… • Since Nov 2009 • 174 posts Report Reply

  • Lucy Telfar Barnard,

    I'm not sure what, but giving a prosecutor the power to seek life without parole for a drink driving ... causing death charge seems excessive. Some manslaughters you want to count as as strikes – some ... you really don't.

    There may be some manslaughters you don't want to count as strikes, but why on earth would drink driving causing death be one of them? (N.B. This is a quite different argument from whether or not the three strikes policy is a good idea in general). I view drunk driving causing death as at least as serious as any other type of manslaughter - more serious, in many cases, because I view it as premiditated: you make the decision, when sober, to take your car with you; you make the decision, when your car is with you, to drink anyway; and you make the decision, albeit now under the influence, to put yourself in control of a deadly weapon and go out on the streets, rather than seek alternative transport. I think there's so much premeditation in that that it should count as murder, not manslaughter.

    And how is that less bad than what I presume would be the standard manslaughter situation, where someone hits someone else in a rage, who then falls down and hits their head and dies?

    Wellington • Since Nov 2006 • 585 posts Report Reply

  • Graeme Edgeler,

    [somewhat over-simplified], but:

    Theft is stealing something.
    Robbery is theft plus violence, or threat of violence
    Aggravated robbery is theft + serious violence, or theft + violence + weapon, or theft + violence + multiple offenders (or threats to this effect).
    Burglary is theft + being unlawfully on premises (e.g. theft after breaking into a home or office).
    Aggravated burglary is theft + being unlawfully on premises + violence, or theft + being unlawfully on premises + weapon (e.g. a burglary where the offender is found by the homeowner, picks up a knife from the kitchen bench, yells "get back" and legs it).

    Aggravated burglary is not even always an offence involving violence.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Graeme Edgeler,

    And how is that less bad than what I presume would be the standard manslaughter situation, where someone hits someone else in a rage, who then falls down and hits their head and dies?

    The standard manslaughter situation would be more likely an intentional stabbing, where the offender just doesn't think about the likelihood of death resulting from his actions, so isn't guilty of murder.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • 3410,

    "Crusher" Collins wilfully distorts prison officers' position on 'Three Strikes' (that they will be put in danger of inmates with nothing left to lose).

    I am astonished that the union would suggest prisoners they regard as too dangerous to be kept in prison be released back into the community through shorter sentences. [...] I believe it sends the wrong signal when their union starts making excuses for these hardened criminals."

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Graeme Edgeler,

    Wilful distortion, maybe, but really clever distortion at that.

    Onto the central point ... the argument - that prisoners who can't ever be paroled have no reason not to kill guards - sounds plausible in theory, but does it stack up?

    We're not the first country to introduce three-strikes or life without parole. By how much did prisoner on guard violence increase in California after three strikes was introduced? I've seen a lot of people make this argument, but none of them has pointed to any evidence that suggests the fear is well-founded.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Lyndon Hood,

    One could tangentially argue that if they *don't* kill more guards the whole threat-of-punishment theory of prevention goes out the window.

    Though they don't generally have a reason to kill guards either. Deliberately.

    Corruption would be interesting to check.

    I imagine all the datas would have a bunch of noise.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Lyndon Hood,

    Though one is impressed by Collin's (Press Sec's) chutzpah, including the 'with nothing to lose' phrase then carrying on as if it wasn't there.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Kyle Matthews,

    Onto the central point ... the argument - that prisoners who can't ever be paroled have no reason not to kill guards - sounds plausible in theory, but does it stack up?

    You'd imagine that those prisoners that are looking ahead at the rest of their natural life in jail, are probably likely to be less well behaved than those that have parole hearings to think of.

    While future punishment is a limited deterrant to serious crime, it would be interesting to learn if "there's nothing more they can do to me" leads to more crime - against guards, other prisoners etc.

    If I'm in jail until I die, then there's no real downside to performing a hit on a fellow prisoner or working my butt off to deal drugs, particularly if there's benefits for my family or gang on the outside. What are they going to do? Extend my sentence to 75 years after I die, like Mickey Mouse?

    (All threads lead to copyright, obviously).

    Since Nov 2006 • 6243 posts Report Reply

  • Just thinking,

    Surely the issue of danger comes primarily from overloading the system, double bunking and extended lockdown - a bit of stir-crazy could go a long way.

    Putaringamotu • Since Apr 2009 • 1158 posts Report Reply

  • Kumara Republic,

    a bit of stir-crazy could go a long way.

    As in Attica stir-crazy or Reeves County stir-crazy.

    The southernmost capital … • Since Nov 2006 • 5441 posts Report Reply

  • Rich Lock,

    Onto the central point ... the argument - that prisoners who can't ever be paroled have no reason not to kill guards - sounds plausible in theory, but does it stack up?

    We're not the first country to introduce three-strikes or life without parole. By how much did prisoner on guard violence increase in California after three strikes was introduced? I've seen a lot of people make this argument, but none of them has pointed to any evidence that suggests the fear is well-founded.

    There is anecdata that supports this, but I don't know if it has ever been studied. However, in searching for something concrete, I came across this site.

    Polaschek et al (2005) provide a description of similar programs focusing on cognitive skills in New Zealand’s Rimutaka Prison, housed in the Violence Prevention Unit (VPU). Treatment intensity is 330 hours, spread out over the course of 28 weeks. It is conducted in groups, including possible participation by family members, but individual treatment is also available. The program emphasizes “participant contribution,” as well as modeling, rehearsing, and practicing new skills.

    The program has proven to be effective in that it reduces recidivism rates among those who successfully completed the program, and doubles the time to reconviction for those that did not survive compliance. It does not work as well, however, in nonviolent offenders, and there still needs to be more research done in this area to conclusively lay out a cognitive-behavioural framework for preventing violent and nonviolent re-offending.

    Now, if you're not going to release someone, you won't bother treating them with programs like the one above.

    If you don't treat them, they stay violent. If they're in jail, there are only really two targets for that violence: other prisoners or guards.

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • Graeme Edgeler,

    The final select committee report has been released today, and I (I suspect it was me, but someone else might have mentioned some of them too) got a number of things changed:

    1. Life without parole is no longer mandatory/available for third-strike manslaughter (it will be life with 20 years non-parole, or at least 10 years non-parole if 20 would be too excessive).
    2. No third strike offence can be tried in the summary jurisdiction.
    3. Third strike offences must be tried in the High Court.
    4. Quashed convictions can result in properly quashed warnings.
    5. Quashed warnings can result in re-sentencing for offending for which sentences were imposed in reliance on the existence of a warning.
    6. Erroneously recorded warnings can be corrected.

    There were some other new changes too. The main one is the inclusion of some new offences:

    sexual conduct with children and young persons outside New Zealand (e.g. underage sex tourism)
    procuring murder
    conspiracy to murder
    poisoning with intent to cause greivous bodily harm
    infecting with disease

    Acid throwing and incest are still gone. And assault with intent to rob never was (I said it was in my update, but was mistaken ... I blame scoop, which has placed an advertisement after the penultimate offence in the list).

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Sam F,

    I see this morning that ACT has taken the opportunity to pat itself on the back with a leaflet singing the praises of Three Strikes, distributed inside the Herald. Printed and distributed with public money largely in defiance of ACT's ideological principles, but all in the greater good, y'know?

    Digital version [PDF]

    Auckland • Since Nov 2006 • 1609 posts Report Reply

  • Graeme Edgeler,

    I see this morning that ACT has taken the opportunity to pat itself on the back with a leaflet singing the praises of Three Strikes, distributed inside the Herald.

    And printed before the Select Committee report too - there are now 40 offences. Somewhat more egregious is the following, however:

    Strike one: the offender receives a sentence, as determined by the judge, with parole.
    Strike two: the offender receives a sentence, as determined by the judge, with no parole.
    Strike three: the offender receives the maximum sentence for that crime with no parole*
    *A Judge sentencing a strike three offender must give the maximum sentence unless it is ‘manifestly unjust’ to do so

    A Judge sentencing a strike three offender must give the maximum sentence.

    That Judge must order that sentence to be served with no parole unless it is 'manifestly unjust' to do so. But it has to be the maximum sentence. There is no discretion about that at all.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Matthew Poole,

    *A Judge sentencing a strike three offender must give the maximum sentence unless it is ‘manifestly unjust’ to do so

    A Judge sentencing a strike three offender must give the maximum sentence.

    That Judge must order that sentence to be served with no parole unless it is 'manifestly unjust' to do so. But it has to be the maximum sentence. There is no discretion about that at all.

    There's a big comprehension gap between what you say and what Act says. Huge gap. So we now have attempted murder, manslaughter and murder as crimes that, as third strikes, will attract automatic life sentences regardless of the circumstances?

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Graeme Edgeler,

    There's a big comprehension gap between what you say and what Act says. Huge gap. So we now have attempted murder, manslaughter and murder as crimes that, as third strikes, will attract automatic life sentences regardless of the circumstances?

    The maximum sentence for attempted murder is 14 years. Someone convicted of attempted murder as a third strike must receive a 14 year sentence, and will not be eligible for parole. However, if the judge considers that refusing any prospect for parole would be manifestly unjust, he or she may impose a lesser non-parole period.

    Third strike murder must be life. And will be without the possibility of parole unless that would be manifestly unjust (in which case it must be at least 20 years, unless that would be manifestly unjust, in which case the law appears to be silent for some reason ... oops).

    Second strike murder must be life. And will be without the possibility of parole unless that would be manifestly unjust (in which case it must be at least 20 years, unless that would be manifestly unjust, in which case it must be at least 10 years).

    Third strike manslaughter must be life. And must be with at least a 20-year non-parole period, unless it would be manifestly unjust, in which case it must be at least 10 years.

    First strike murder must be life, unless a life sentence would be manifestly unjust. If it's life, the non-parole period must be at least 10 years.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Matthew Poole,

    Ah, my bad on attempted murder. For some reason I had the idea that its maximum sentence was also life.

    That's some very bizarre legal reasoning, and we're not going to see the downstream effects for at least two decades. Hopefully sanity will see that repealed, but I'm not holding my breath. The trend to vengeance isn't exactly new, after all.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

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