Editorial: The jury's out on three-strikes law

Last updated 05:00 27/05/2010

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OPINION: Now that the three-strikes legislation is in place, its real trial begins.

Supporters believe it will see a drastic fall in the number of serious offences – ACT MP David Garrett, pressed on Radio New Zealand to give a figure, said he expected a 5 per cent to 10 per cent fall in violent offending in the first five years of the law's operation.

That will be easy to assess from the crime statistics. More difficult will be judging whether it ends up delivering justice, or simply arbitrary vengeance.

Its opponents believe the measure is indifferent to the individual circumstance of the crime and that, because it is arbitrary, it will stop the courts delivering sentences proportionate to the severity of the actual crime.

The philosophy that drove the change is hard to argue with. Recidivist offenders have again and again been given fourth, six, seventh and more chances, and have used those chances to unleash havoc on the innocent.

If the new law had been in place when Graeme Burton began his life of offending, he would have been unable to shoot and kill Wainuiomata father Karl Kuchenbecker in Lower Hutt. At the time he killed Mr Kuchenbecker, Burton had more than 100 convictions. He was on parole for an earlier murder.

The three-strikes legislation is a recognition that there must be limits, a point at which willingness to gamble on redemption gives way to ensuring the public is protected from any prospect of future harm.

The question that will be answered over the next few years is whether that should be a blanket judgment, or there should have been more discretion left to judges.

Plainly, much of the public has not been happy with the way judges have been using the latitude they have until now enjoyed, and the politicians' imposition of arbitrary sentencing at the third strike is a response to that.

Judges can only break the non-parole provision where it would be manifestly unjust not to do so. How that is interpreted will play a huge part in deciding whether or not the legislation succeeds.

The danger is that, if it does not provide enough flexibility to deal with an offender's particular circumstances, it will bear out Justice Ministry advice delivered before the legislation was passed that it was unfair and potentially breached human rights.

The Law Commission is ideally placed to report to politicians on that. It should be asked now to put the operation of the law on its agenda for review in five years, and again in a decade when the full effects have become obvious.

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It will be then that politicians should revisit the issue, and that the public will know who had the better crystal ball: Police Minister Judith Collins – who believes the three-strikes legislation "will help make New Zealand a better, safer place" – or Maori Party MP Hone Harawira, who argues that "just putting a guy in jail for the rest of his life doesn't stop the fact that other people are in the same conditions and are likely to start heading down the same path".

- © Fairfax NZ News

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