The Evil Three Strikes Law

I've posted before on the appalling nature of the Three Strikes Law.

Now we have a good example before us of the potential injustices the law will create.

A 69 year old man with apparent dementia and apparently suffering from Parkinsons Disease has been charged with two counts of indecent assault on a woman. He apparently grabbed the breasts of a fellow rest home resident. These are "strike" offences. The man's lawyer, Michael Bott, says that the man's conduct is a side effect of the medication he is taking, and that he had no record of significant offending until two years ago.

If a conviction is entered the man will be given his first strike. It appears he is not mentally sick enough to claim insanity as a complete defence, and New Zealand law does not recognise diminished responsibility as a defence or partial defence.

So the man's only hope of not avoiding a strike is that the judge will be lenient and not convict (and this might be part of the reason why the man's lawyer has gone public - to illustrate how obscene the law is and what the consequences of a conviction could be).

If what the man's lawyer says is true then this represents an appalling example of the very injustices people feared would occur under the new law. If the man is genuinely sick and cannot control his impulses then there's a good chance he'll re-offend. If he lands a second strike he'll have to serve whatever sentence he is given without parole. Strike three and he gets the maximum penalty, probably without parole. Indecent assault will land him seven years in prison.

(The man also has a serious problem finding anyone to take him in, and is languishing in prison because there is nowhere else to put him, which is an appalling indictment on our health system, but that's another issue entirely)

Judith Collins, whose heart must be made of granite, doesn't care. She says the judge can simply choose not to enter a conviction. 

“If a person with mental health issues is found guilty of, or pleads guilty to, a qualifying offence at any of the three stages, the court has the option of discharging the person without conviction.

“The court may order a discharge without conviction if it is satisfied that consequences of a conviction would be out of proportion to the seriousness of the offence.

If a person is discharged without conviction, the Three Strikes law will not apply because it is triggered by conviction.”

But is it realistic or even reasonable to expect a discharge without conviction on an indecent assault charge? Even if we accept that the man has some diminished responsibility for what he did, I don't feel comfortable that the answer is just to let him off all charges. If judges have to go to those length to avoid the effects of the new law then that says a lot about the law.

Collins also says that the three-strikes law works because on the third offence the judge can decide not to impose a non-parole sentence.

Ms Collins said that even if a person was convicted of a stage three offence, and not acquitted on the basis of insanity, the person would not necessarily serve the maximum term in prison without parole.

“The court must order the defendant to serve the sentence without parole unless, given the circumstances of the offence and the offender, it is manifestly unjust to do so,” she said.

“The mental health of the offender may be a factor that the judge takes into consideration in deciding if it would be manifestly unjust to serve the sentence without parole.

“If parole was allowed, the offender would not necessarily spend the maximum term in prison.”
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That means the offender would still get seven years, but might be out earlier. I say "might" because "manifestly unjust" is a very tough standard to meet. "Fairly unjust" or "considerably unjust" won't do the job.

I have to stress that I'm relying on what the man's lawyer has claimed, and if it turns out that Mr Bott's client is actually a calculating evil shit then by all means let the man feel the full weight of the law.

But even if this man isn't a potential victim himself, the case has thrown up a potential example of how obscene the three-strikes law is or could be. It is evil legislation, and it needs to go.