Brian Rudman: Time to strike out Three Strikes law

The Three-Strikes legislation is only going to increase that number. Photo / Peter Bromhead

Is it any wonder the prison population is soaring out of control when we lock up an impulsive young prisoner for seven years, for snatching a "one to two second" squeeze of a female prison guard's uniformed right buttock!

It will be of little consolation to offender Raven Casey Campbell, 25, that as the first "graduate" of the draconian "Three Strikes" legislation, he has become the poster boy for what the Criminal Bar Association denounces as a barbaric law.

The Three Strikes act was pushed through Parliament by Act's law and order spokesman David Garrett, becoming law in May 2010. Ironically, a few months later Garrett quit parliament in disgrace after admitting he was a repeat offender himself with a conviction for assault in Tonga and a discharge without conviction for obtaining a passport in the name of a dead child.

Stirring up a storm of law and order hysteria, Garrett and his National Government allies had argued the new law would deter and punish the most heinous and dastardly of criminals.

Minister of Justice Simon Power said it was targeting "the worst murderers" and "the worst recidivist violent offenders."

Yet six years on, its first trophy, is a robber, who according to Justice Kit Toogood's sentencing notes, spent most of his childhood in foster care and has "limited support in the community."

His bottom grabbing, said the judge was "impulsive and foolish, . . . not malicious."

Similar cases in the past had not resulted in a sentence of imprisonment at all, he said.

But because of Campbell's previous conviction for aggravated robbery, he would have been facing no more than 12 months imprisonment, except for the Three Strikes legislation.

But as he had two previous strike warnings, the first for a robbery conviction in 2012, the second for the aggravated robbery in 2014. Justice Toogood said he had no option but to sentence him to the maximum penalty for indecent assault of seven years imprisonment.

This was "very harsh," said the judge but "that is the law and I have no option."

The law also demands the full sentence be served without parole, unless that would be manifestly unjust. Using this safety valve, Justice Toogood said that seven years without parole was "a grossly disproportionate outcome," and granted Campbell the right to apply for parole after serving a third of his sentence.

In August, five Court of Appeal judges used the same safety valve to save two convicted murderers from life imprisonment without parole. They had both fallen foul of the second warning phase of the Three Strike law.

The judges questioned the whole point of the law concluding that "the research on whether the three-strikes regime actually work to reduce crime is equivocal at best." They quoted a police report that noted "it is generally difficult to identify the extent to which a change in behaviour is due to incapacitation and deterrence as opposed to other factors."

A year ago, in an analysis of the first five years of Three Strikes legislation, Auckland law professor, Warren Brookbanks had raised the same doubts.

If the new law was acting as the deterrent it was set up to be, how come, he asked, were there were "well over 5000 convictions for first strike offences" in its first five years. He added that police records show no decline in the serious crimes targeted by the 2010 legislation and no correlation between crime statistics and the new law.

From 2008/2009, the number of sexual assaults per 10,000 population began to rise.

As for serious assaults resulting in injury, they'd been dropping since 2008/2009. Similarly robbery peaked in 2006 and then declined. Indeed, said Professor Brookbanks, police statistics show a steady overall decline in recorded offence from 1300 per 10,000 people in 1995 to just under 800 per 10,000 in 2014.

But while the crime rate goes down, the prison population continues to climb. In December 2010 when the new law to deter offenders came into effect, the prison muster was 8546. Last March, it had risen to 9273 and the prison service was preparing for 10,000 inmates by next April.

The Three-Strikes legislation is only going to increase that number, the designers predicted another 700 by 2060. Bottom-pinchers and rapists treated the same. It's time it went the way of its disgraced Act Party champion.