Sunday, December 4, 2016

3 Strike legislation misses the mark?

Possibly the most controversial Criminal Justice System Laws of the past decade have been the knee jerk reaction to the Weatherston  case in Christchurch where the Law was changed to close a 'loop hole' that was seen by Law makers regarding the defence of Weatherston in using provocation. A defence that the Jury rejected after finding Clayton Weatherston guilty anyway of the murder of one of his ex students Sophie Elliot.

The second would be the 3 Strikes Legislation, a improvised Law taken from the States and applied here in NZ. It was ostensibly going to punish the worst of the worst. It went onto became a hot political subject and would never be far from controversy and historically may be remembered for the most unusual reason that it's patron David Garrett, was forced to resign from Parliament for not having come clean about a checkered past. That past has never deterred him from voicing opinions of others, primarily anyone that doesn't agree with his often one-eyed opinions and apparent lack of insight. Somehow he thought Parliamentary Law did not apply to him by reason that he was a soldier of Law and order. He has written publicly about his desire as a youth to track down and kill gang members a statement which undermines his claim that he stole the identity of a deceased child as a 'joke.' He said he got the idea from reading the book 'The Jackal' about an assassin such are the contradictions of the man, he has never been able to explain what the joke was and certainly nobody else has. In the past  has also written about his admiration for Britain's hangman Pierrepoint in a manner that shows more of his vindictive nature that his apparent care for the Law. He is indeed a Lawyer who was stopped from practising for a time, has had unsuccessful marriages, neighbours speak out against him and his manner. He claims to have fallen on hard times and if there is any affection for anything in his life other than himself, and booze, then in must be 'his law' the 3 Strikes Legislation.

It's clear that the seldom used defence of provocation soon settled in the public mind as a non event although the legislation to ban it remains an awkward outpost in the fairness of a defendant not having available to them the opportunity to prove they were suffering enduring abuse, or physical harm and finally cracked - something that at least has the tone of reality of real life situations attending its cause. Many will, in my opinion, sympathise with those driven to striking out against physical abuse in a marriage, partnership or some other form of partnership that has gone wrong. Of course such situations will seldom result in death or serious harm to the perpetrator but there may be rare exceptions. Weatherston was not married to his victim, nor had they been in a long term relationship. She was simply moving on with her life and after killing her he claimed that she had provoked him, a claim that was rejected by a Jury.

In the following link there is a blog by Andrew Geddis which sets out his views on 3 Strikes and the predictions of Auckland Law Professor Warren Brookbanks who contemplated that the Law would actually throw up ambiguities and not capture the anticipated big fish Garrett promised. The Law Professor looks to be right as the first person to be 'captured' by the new Law was not the violent and dangerous type of offender that the public were told would be incarcerated for serious offences, and on their third strike serve the maximum sentence the law allowed without parole subject to the discretion of the sentencing Judge.

I have no intention to attempt to downplay that the man involved in fact frightened his victim, a female prison officer who he touched on the bottom for 1 to 2 seconds. But I think by any account it would never have made the newspapers, and also hasn't  struck satisfaction to the public who brought the idea that dangerous criminals were about to be thrown in prison and have the key thrown away. Instead it was a Clayton's moment, the bottom fondler received 7 years (with the chance of parole) for an inappropriate touch. After 6 or so years in the making, potentially millions of dollars spent and the public get a fizzer no matter how much die hards say 'good job.' The result is not the resounding triumph predicted. How much they must have hoped for a 'big name' a trophy instead they got a 25 year old who some would call a kid without any record of any type of sexual offence. One who according to the sentencing notes not only admitted the offence, but apologised, Even the prison officer, who was unnamed was reported, as saying that a long sentence was not warranted.

Where these points meet is a interesting place, a defendant who acknowledges guilt for a crime that he may not have been convicted of had he not pleaded guilty, a man who speaks apparently honestly of his remorse, a victim who doesn't want the door closed on the convicted man and a Judge who acknowledges that he had no alternative but to impose the maximum sentence which to his mind may have only attracted a maximum sentence of 12 months. In other words 3 parties reasonably in agreement about an out of kilter sentence that had to be imposed anyway because it is the Law. It's important to reflect that this man was not a 3 time robber or violent offender, he also was not a serial sex offender. As written above he had no convictions of a sexual nature. There could be other more appropriate situations where a 3 Striker might be shown to at least be fitting into the concept on which it became Law. Regardless, this one does not, and the 3S legislation (as Garrett fondly calls the Law when he speaks about it at every chance) has been years in the making only to prove it didn't fly. The prisoner was a teen at the times of the campaigning for this Law, blissfully unaware that one day he would have the less than enviable distinction to be the first 3 striker sentenced. However, what we don't know from the Judgement, as I recall, is if the prisoner even knew he was committing a 3rd strike offence when he touched the prison officer's butt. If he didn't, the labyrinth of understanding required of the Law would not appear to be reside in the very group the law targets.

I don't think that is the only short coming the first 3S sentence has revealed. Frankly not knowing all the details of the Law which does appear fairly complex, arguably far too complex for those intended to absorb the possible consequences of falling foul of the Law - I am left with the impression of another flaw, that a person on 2 strikes for offences of the same type can actually be dealing with that type of offending only to be tripped up for some other type of offence on the 3S calendar not committed before by he or she, even of a type which is arguably minor compared to potential more serious assaults.

If, as it appears, the Law is itself in fact an ass, only time will tell. 6 years or so on some will feel it is, others will not. This will take many more years before that becomes clear and opponents will always have the opportunity to point out its failure here. In the meantime perhaps the message has resonated not to touch the bottoms of other people. The Sensible Sentencing Trust, who pushed for the Law in a deal with the Act party have been silent about the small fish their net harvested. The Act Party leader on the other hand has said that it was a good job (the third strike sentence). David Garrett, the adopter of the idea from America who presented the Law to the NZ Parliament during his time as an MP has understandably defended the Law and marked it in someway as a credit to himself. It appears David Garrett may have possibly found favour among some groups who formerly opposed him for his manner, there were many speaking out with horror as to what bottom touching represents in the modern world. Who knows it may represent a chance to become a spokesperson for women in the future, after all there must be other crazy Laws somewhere out there looking for a new home.


  1. A simple way around this would be to amend the Act to allow discretion by the Judge on the third strike both on length of sentence as well as parole. Quick and efficient, problem solved.

  2. Yep, that would do it. Still have the deterrent effect without the chance of a sentence unfitting to the actual crime.