Police, judge attack three strikes policy

16:00, Jan 20 2010

The Government's new "Three Strikes and Max" crime policy has been criticised by a judge and labelled a political gimmick by the police union.

"There is no doubt about it. This will change a lot about the way everyone operates in the system," Police Association president Greg O'Connor said. "The judges, the lawyers and the prosecutors."

Under the new sentencing policy, offenders convicted of one crime on a list of 36 would earn a strike. A second conviction from the list would bring a sentence with no parole. A third strike conviction would lead to a mandatory maximum sentence for the crime with no parole.

A get-out clause would exist at the second and third strikes if a judge felt a non-parole and/or maximum sentence would be manifestly unjust.

ACT leader Rodney Hide, whose party pushed for a tougher version of the policy in its coalition agreement with National, said the get-out clause would be used only in "pretty extreme" cases.

Law Society criminal law convener Jonathan Krebs said the clause was important. "The court will not be fettered by any comments by any ministers," he said. "Manifestly unjust will be interpreted and defined by the court."

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Mr Krebs said two technically minor offences bringing a conviction off the list could be followed by a killing where the offender was provoked within an inch of their life.

"If the operation of this new act says that you then get absolute total life imprisonment [for that] then that's probably wrong."

Mr O'Connor said the law would create long-term changes to the justice system that would become apparent in two or three years.

"Decisions that should be made by properly trained and properly selected judges will just simply be moved elsewhere in the system."

The policy was in many ways a political gimmick and would probably cost the judiciary, as well as prisons, more.

In Christchurch District Court yesterday, Judge David Saunders criticised the policy when he ruled a man with 65 previous convictions could go free on bail. The man's latest charge relates to an attempted rescue of his dog from the pound.

"This case points to the failure of the ACT policy," Judge Saunders said: "If this charge were proved, [the defendant] might likely face 10 years' jail for going into a dog shelter."

But a spokesman for Police Minister Judith Collins said the judge's conclusion was wrong. "Burglary is not one of the 36 serious violence and sexual offences that would be captured by the legislation," he said.

While aggravated burglary did qualify under the new legislation, it would almost certainly not apply to the case in question.

Maori Party co-leader Pita Sharples said the law left justice "right out of the picture" and would lead to huge disparities in sentencing. "Judicial discretion is overruled by political dogma."

Labour leader Phil Goff said changes in 2002 had led to an additional 2500 criminals being locked up and the new changes would only lock up a further 12 criminals every year. The measure was "political flim-flam".

'A STEP IN THE RIGHT DIRECTION'

The family of victims of some of the country's most notorious killers have welcomed the Government's proposed three strikes legislation.

The policy, if adopted earlier, would have prevented career criminals such as Graeme Burton from going on murderous rampages.

Burton gunned down and killed Wainuiomata man Karl Kuchenbecker, an innocent bystander, while on the run from police in 2006. At the time, Burton was on parole for an earlier unprovoked murder.

Mr Kuchenbecker's father, Paul Kuchenbecker, applauded the legislation.

"I'm just glad it's forward motion. This Government is really taking positive steps. They've made promises to New Zealanders and they're following through."

Mr Kuchenbecker said the proposed law was aimed at the worst criminals who showed little chance of rehabilitation.

"New Zealand doesn't need those reoffending murderers. We're not talking huge numbers here but we should be hard on those people."

In July 2007, Sergeant Derek Wootton, a Porirua policeman, was killed while laying road spikes in Titahi Bay to stop a stolen car driven by Mongrel Mob member Andrew Popo.

Mr Wootton's fiancee, Bronwyn Hewitt, said yesterday that killers should not get three strikes before they were put away for good.

"He's given me a life sentence. I've never ever gotten over that and I never ever will.

"[The victims] don't have one and two and three chances. They only have one chance."

In April, Popo was jailed for nearly nine years but could be freed as soon as July 2013 – a sentence Ms Hewitt said was too short. "As a career criminal he's never going to change."

Andrew Londale Watene had 32 convictions, including 11 for violent offences, when he murdered Lower Hutt man Steven Stone in 2007. He was on parole for a stabbing when he stabbed Mr Stone, 21, through the heart in Upper Hutt.

Mr Stone's grandfather Mike Jacobs welcomed the legislation.

"I think it's far too late [but] I'm all for it. The lawful in New Zealand have ceded a lot to the unlawful."

Sensible Sentencing Trust spokesman Garth McVicar said the legislation had been watered down.

"I think we've got to accept that it's a significant first step and that's about it."

NEW POLICY WOULD HAVE STOPPED THEM

Repeat offenders who would have been prevented from killing under the new three-strikes policy:

Graeme Burton: On the run when he shot dead Wainuiomata man Karl Kuchenbecker in 2006. At the time he was on parole for the murder of Paul Anderson in Wellington in 1992. Now serving 26 years' jail without parole, Burton will be eligible for release in 2033. He had more than 100 convictions before the 2006 murder. He appeared in court on charges of attempted murder of a fellow inmate in April.

George Charlie Baker: Sentenced to 18 years in prison for throttling and stomping to death Liam Ashley, 17, in the back of a prison van in August 2006. He was in custody for stabbing a North Shore youth and had only weeks earlier been freed after serving seven years for a violent home invasion.

Andrew Londale Watene: Racked up 32 convictions, including 11 for violent offences, before robbing and murdering Lower Hutt man Steven Stone in 2007. Watene was on parole for a knife attack when he stabbed Mr Stone, 21, through the heart during a robbery in Upper Hutt. The Mongrel Mob member was sentenced to 15 years' for the murder and will be eligible for parole in 2022.

DO THE CRIME, DO THE TIME

The 36 offences that will qualify as a strike carry maximum jail terms of between seven years and life. Here the crimes are listed with the maximum jail term if convicted:

Murder, Life

Manslaughter, Life

Sexual violation, 20 years

Attempted murder, 14 years

Sexual connection with consent induced by threat, 14 years

Sexual connection with child, 14 years

Compelling indecent act with animal, 14 years

Wounding with intent to cause grievous bodily harm, 14 years

Aggravated wounding, 14 years

Discharging firearm or doing dangerous act with intent to cause grievous bodily harm, 14 years

Using a firearm against a law enforcement officer, etc, 14 years

Abduction for purposes of marriage or sexual connection, 14 years

Kidnapping, 14 years

Aggravated burglary, 14 years

Aggravated robbery, 14 years

Causing grievous bodily harm with intent to rob or assault with intent to rob in certain circumstances, 14 years

Attempted sexual violation, 10 years

Assault with intent to commit sexual violation, 10 years

Attempted sexual connection with child, 10 years

Doing an indecent act on a child, 10 years

Sexual connection with young person, 10 years

Attempted sexual connection with young person, 10 years

Exploitative sexual connection with person with significant impairment, 10 years

Attempted exploitative sexual connection with person with significant impairment, 10 years

Injuring with intent to cause grievous bodily harm, 10 years

Using a firearm to resist lawful arrest or detention, 10 years

Commission of crime with a firearm, 10 years

Robbery, 10 years

Sexual connection with dependent family member, 7 years

Attempted sexual connection with dependent family member, 7 years

Indecent act on a young person, 7 years

Indecent assault, 7 years

Wounding with intent to injure, 7 years

Aggravated injury, 7 years

Discharging firearm or doing dangerous act with intent to injure, 7 years

Assault with intent to rob, 7 years

The Dominion Post