From bottom pinching to serious violence - is the three strikes law working?

Six years on from the three-strikes law, the first third strike has reignited controversy about the law's design.
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Six years on from the three-strikes law, the first third strike has reignited controversy about the law's design.

The critics could not have scripted it better.

The very first third strike under the controversial 2010 law of escalating punishments for serious violent crimes played out the worst-case scenario opponents had predicted.

Bottom-pincher Raven Casey Campbell ticked all the "I told you so" boxes – a judge reluctantly imposing a disproportionate sentence for a comparatively minor crime causing no physical injury. Because the offence was Campbell's third strike, Justice Toogood had to impose the seven-year maximum term for indecent assault, which spans everything from an unwanted bottom-pinch to a Malaysian diplomat following a young woman home and entering her bedroom with his pants and underwear down.

"It may seem very surprising that this consequence could be required by law for an offence of this kind, but that is the law and I have no option but to enforce it," Toogood told Campbell.

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For context, Jackson Whakatihi got 7½ years for armed robbery of one Christchurch bar and trying to rob another. The South Canterbury father who for $500 rented out his infant son for sexual gratification received eight years 10 months in prison, with a non-parole period of five years. The Malaysian diplomat received nine months' home detention.

The three-strike provisions demand that, on the third strike, offenders receive the maximum sentence, without parole, unless that would be "manifestly unjust". Toogood would normally have imposed 12 months' prison at most, taking into account a probation officer's concerns about Campbell's escalating violence and that his victim was a prison guard who felt "totally degraded". Seven years without parole would therefore be "grossly disproportionate", Toogood said. So he allowed parole, circumventing the law at its first outing.

Critics say the bottom-pinching case is absurd and reveals the law's glaring design faults.

But proponents say Campbell's case was simply the law working as it should. The sentence was not for Campbell's bottom-grabbing but for his three accumulated offences, which included robbery and aggravated robbery. And the law's in-built safety valve kicked in as it was supposed to.

MORNING REPORT/Radio New Zealand

Former Act MP and architect of the three strikes law David Garrett is defending the seven-year jail sentence given to a man for pinching a prison guard's bottom.

HOW DOES THE LAW WORK?

Championed by the Sensible Sentencing Trust and the ACT party, the three strikes law came into force on June1,  2010.

As ACT leader David Seymour puts it, Parliament took action because judges were not taking crime seriously enough.

The law works by imposing three stages of escalating penalties for 40 qualifying offences, classified as serious violent crimes.

At the first strike, the offender receives a first warning but no change to their sentence. At the second strike, the judge imposes the ordinary sentence, but without parole. At the third strike, the judge imposes the maximum sentence without parole, unless that would be "manifestly unjust".

There are special rules for murder as the second strike – offenders must be put away for life without parole, unless that would also be "manifestly unjust".

The law's architect, David Garrett, promised the legislation would work in one of two ways: incapacitation and deterrence.

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Six and a half years since the law came into force, it's still too early to tell whether it is reducing violent crime.

ACT leader and three strikes champion David Seymour says it's too early to say if the law is working. PHOTO: MARION VAN DIJK/FAIRFAX NZ

The only hard evidence was reoffending statistics obtained by Wellington lawyer Graeme Edgeler, which appeared to show a significant drop in second strike offences since the law was enacted.

However, further investigations by Stuff have revealed those numbers are, in fact, bogus. The Justice Ministry not only failed to provide the comparable figures Edgeler requested, it also failed to flag that the figures were not comparable, despite knowing how he intended to use them. It also allowed the resulting incorrect conclusions to go unchallenged for a year.

The ministry says that with hindsight, its description of the data could have been better. However, it denies responsibility for any resulting confusion. 

THE CASES SO FAR

While Campbell's case was the first third strike, first and second strikes have been ticking along.

So far, the courts have issued 7647 first strike warnings and 175 second strike warnings. You would expect a fall-off in second strikes, both because it takes time to serve a sentence and commit a subsequent offence and because only a percentage of offenders will be caught.

In the five years before the law, 6809 people committed first-strike offences and 256 committed second-strike offences.

James Oleson, an Auckland University associate professor of criminology, looked at offender characteristics. In the law's first 2½ years he found three strike offenders were overwhelmingly male (91 per cent) and mostly young (79 per cent were younger than 40). Maori and Pasifika were over-represented, but that's not unique to three strikes.

The demographics mirror the prison population, suggesting the law is broadly capturing the right people – those committing serious crimes.

Oleson also investigated three strike offences. As at April 2013, strike warnings had been given for only nine of the 40 eligible offences. The vast majority were for sexual assault, robbery or aggravated robbery and serious assault. Manslaughter and murder made up just 2.5 per cent of first strikes and no second strikes.

Many strikes are for horrendous crimes, including the father who sold his toddler for sexual gratification. Others involve being an accessory, such as driving a robbery getaway car.

Since Oleson's research there have been five second-strike murderers, who under the law should have been put away forever. In each case, however, the judge decided life without parole would be "manifestly unjust". While Parliament expected the "manifestly unjust" exception to be rarely used, the Court of Appeal has opened the floodgates, declaring that restricting it to exceptional circumstances "would often give rise to grossly disproportionate sentences".

Which raises the possibility that judges will undermine the law's intent by continually applying the exception to allow parole.

Seymour warns if that happens, judges risk losing even that discretion.

"If the judges are going to continue to thumb their noses at Parliament, there is going to have to be some sort of a reckoning, perhaps. And they will find the manifestly unjust clause, or at least its application, removed or narrowed."

Not all victims want tougher sentences. The Greenslade family opposed life without parole for the man who murdered Matthew, top right. PHOTO: SUPPLIED

ABSURD DISPROPORTIONALITY?

Oleson's interest in recidivist penalties was sparked by his time as a student in California, when that state's infamous three strikes law was passed, in 1994.

The draconian law was amended in 2012 to exclude minor offences, after it led to severe prison overcrowding and such absurd sentences as 25 years in prison for stealing a slice of pizza.

The New Zealand law was designed to avoid such extreme cases. However, critics would say the Campbell example shows it failed.

Auckland law professor Warren Brookbanks, a three strikes opponent, says the bottom-pinching case illustrates the "absurdity and lack of proportionality between the wrong done and the penalty imposed".

Criminal lawyer Robert Lithgow, QC, says the Campbell sentence makes him feel sick.

"I'm ideologically opposed to locked-in sentencing, because it fails to deal with the practical everyday reality that some offences have serious names and are not as serious as they sound and there's also offences that don't sound that bad that are shocking. It works both ways."

Psychologist and reformed murderer Paul Wood says three strikes turns judges into administrators, because it removes their ability to use their experience to tailor the penalty to the particular facts.

"Is that really what we want from a justice system?"

The Court of Appeal found it would be "manifestly unjust" to jail second-strike murderer Shane Pierre Harrison for life without parole. The father of victim Alonsio Matalasi asked for clemency. PHOTO: ROSS GIBLIN/FAIRFAX NZ

Seymour argues Parliament regularly constrains judges and imposing a minimum sentence is no different to imposing maximum sentences, which have not been controversial. However, a maximum sentence still allows discretion up to that point, whereas the third strike rules require judges to impose the maximum sentence as a minimum.

As the law was originally drafted, three strikes warnings would have kicked in only if the specific crime warranted a sentence of five years or more, avoiding the bottom-pinching scenario. However, this was later ditched, for reasons that aren't clear. Several critics say they would be happier with the law if the five-year threshold was reinstated.

Garrett – who has himself committed three offences – would not comment on the law.
 
He referred me to a letter to the editor, in which he pointed out that disproportionate sentences were precisely the point of the law.
 
"It was intended to make the consequences of continued violent offending exponentially worse than hitherto."

At the bill's third reading, Garrett said the law was "about protecting victims". However, victims do not speak with one voice.

The families of two murder victims spoken to held polar opposite views. In both cases, the murders were second-strike offences punishable by life imprisonment without parole. In both cases, the judge found that would be manifestly unjust.

Belle Ranapia approves of the three strikes law and wanted life imprisonment for the man who killed her son Takena, pictured. PHOTO: SUPPLIED

Belle Ranapia is angry the man who murdered her son Takena Tiepa-Ranapia will be eligible for parole.

"Because it seems like I am the one that's doing the time. He still breathes and my son doesn't."

Matthew Greenslade's family, however, felt locking up killer Ben Herkt for life would be unjust, given it was an act of stupidity more than a premeditated killing. Matthew's father Alan says his son had mental health challenges of his own.

"What if Matt had been the perpetrator of this stupid act in the heat of the moment? ... If Ben can find peace with himself and make some positive steps in his own life in the future, I think he deserves the opportunity for parole and to get back into society."

Alan says the three strikes threshold seems too low. However, had the family faced an abusive, unremorseful killer, their attitude may have been different, he says.

Criminal lawyer Robert Lithgow says it's "fantasy" to think harsher penalties will deter people from committing crime. PHOTO: PHIL REID/FAIRFAX NZ 

IS IT A DETERRENT?

Seymour believes in deterrence. Asked if he thinks someone contemplating murder will decide against it because they face life in prison instead of 17 years, he is unequivocal.

"Yes, actually. Having a strike warning read out by a judge is something that deters people. We know anecdotally – people think, 'They're getting serious now, I'm going to rethink my lifestyle'."

Lithgow says the idea is "fantasy". "In most New Zealand crime more thought went into deciding what alcohol to consume than into committing the crime."

Wood also disputes the deterrent argument. If people decided whether to commit a crime based on potential punishment, no-one would take drugs in places like the Philippines, where there are death squads.

Wood says three strikes is a legitimate response to the public's desire for punishment. "But saying this is the best course of action to reduce reoffending and to act as a deterrent – that is dishonest."

Oleson examined the United States experience and found studies both supporting and denying a deterrent effect. The best research showed a reduction in more planned crimes such as burglary and car theft, rather than impulsive, emotive violent offences.

Just having a three strikes law, regardless of the qualifying offences and how it works, seems to have some deterrent effect, Oleson says.

Psychologist and reformed murderer Paul Wood says three strikes is a perfectly legitimate response to public desire for punishment. But to suggest it's an effective way to deter offending is dishonest. PHOTO: MICHAEL BRADLEY/FAIRFAX NZ

WHAT ABOUT COST?

Another common three strikes criticism is the cost of longer sentences and locking up murderers for life.

The 2015-25 Prison Population Forecast says second strike numbers are below expectations. Given the time lag between offences, they don't expect third strikes to have a significant impact in the next 10 years (an extra 10 places at most) but second strikes could stretch New Zealand's already bulging prisons by an extra 230 prisoners by 2025.

At about $90,000 a year to keep someone in prison, Wood says it makes no sense to fund the most expensive accommodation for geriatrics posing no public risk.

However, just considering incarceration costs fails to factor in the high cost of crime, both in trial costs and the costs of injury, emotional harm and – in the case of murder – the lost potential of a life.

While three strikes warnings might not prevent further offending, longer prison terms inevitably will. However, Oleson says attempts to weigh the costs and benefits of the death penalty have delivered such wildly different results they seem meaningless.

Seymour says it's too early to tell whether any costs will justify the public safety benefits. He's open to a 10-year review, once enough cases have gone through the system to enable robust conclusions.

At its core, the three strikes debate remains a clash of ideologies.

"It's an interesting puzzle," Oleson says. "But the hard part is there are real people's lives – offenders and victims – that are affected by these decisions."

 - Stuff

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