The 'Three Strikes' legislation – now part of the Sentencing and Parole Reform Bill - has gone to the Law & Order Select Committee for consideration. The National Government has not altered its original position, which is that it is only committed to supporting the legislation to Select Committee. The fact that it is to be split in two -- the 'National' part and the 'ACT' part – suggests that we have a job on our hands to persuade National to support the 'Three Strikes' provision.

The Select Committee hearings

Submissions have now been called for on the Bill, and close on the 24 April 2009. That is only about five weeks away. If you want to see the Bill passed, everyone in this audience – and everyone you know who thinks this is a good idea – should make a submission. It doesn't have to be long: a page or two at most. As requested by the National Council meeting – I will have a template submission available to anyone who asks for one.

Three Strikes aims to increase public safety in two ways:

Firstly, by incapacitation – locking up three-time violent offenders before they do more harm or graduate to become killers.
Secondly, by deterring others. Contrary to what you may have read in the paper, there is actually some very good evidence that overseas 'Three Strikes' legislation works in both ways.

Anyone can make any submission they like but, in my view, a submission from the general public on incapacitation of habitually violent offenders may have more impact. The argument over deterrence is likely to be largely academic, and we are working to ensure that the argument will not be one-sided.

Many will recall our powerful image of 77 coffin lids resting on the wall outside Mount Eden. Those coffin lids represented 77 victims killed by persons who had, prior to the killing, served at least three sentences for violent offences.

Sentence Episodes

Notice I said "at least three sentences for violent offences", not "three violent offences." The Department of Corrections only keeps records for what it defines as "sentence episodes". A sentence episode means one sentence served for one or more offences at the same time.

Therefore, the 77 killers – which increased to 78 with Liam Reid's conviction for murdering Emma Agnew – have been convicted of at least three offences of serious violence and served sentences of imprisonment for them. The likelihood is that they will have committed many more than three violent offences.

Since the election, I have referred to those victims several times – both in interviews and in Parliament. Not once have I been challenged on that sorry statistic – because the media and, presumably, Labour know it is true … and I have the evidence to support it.

You might wish to consider those victims when making a submission on whether 'Three Strikes' will be effective. Sadly, we know that whatever we do there will be more murder victims in the future killed by persons who have had dozens convictions for violence, as William Bell had before the triple murder at the Panmure RSA.

The sooner we can get a 'Three Strikes' law in place, the sooner we can abort the criminal careers of future William Bells – the violent ticking time-bombs who are out there now with three, six or 10 prior sentences of violence to their names.

While deterrence may be debated – and you can be sure it will be – we know that 'Three Strikes' will work by way of incapacitation. It will work for the same reason that William Bell would not have been able to kill three people and damage a fourth for life. If he had been locked up for 25 years to life after he had served three sentences - rather than being allowed to go on racking up 102 convictions before finally becoming a killer – his victims would still be alive today.

And please don't let anyone tell you – and don't be tempted to reassure yourself – that Bell is somehow uniquely evil. It bears repeating that 78 killers racked up at least three sentences for violence just short of homicide before finally graduating to the ranks of the killers.

There are, in fact, nine – yes NINE second-time killers in our jails right now. Nine men who have killed, served a sentence for either murder or manslaughter, been released and then killed again.

The Strike Offences

There is considerable confusion about the breadth of the 'Three Strikes' law. At Victoria University the other day I was accosted by an agitated libertarian convinced that, under the proposed law, a person could be sent to jail for 25 years for shoplifting or another form of theft.

Let me be very clear: it is IMPOSSIBLE for that to happen. It's impossible because the "strike" offences – now referred to as "serious offences" – in the Bill itself. If it isn't in the list, you can't go to jail for 25 years for it – it's that simple.

That said, the list of offences in the merged Bill is considerably broader than the list I included in my draft Bill. National's list includes serious sexual or other violence offences, and a number of other offences – all of them unpleasant but, arguably, not justifying a 25 to life sentence.

There are various opinions on how this came to be. It may be a Machiavellian move by National designed to sink the 'Three Strikes' provision. Many will say that incest, for example – while a deeply unpleasant offence – should not be a reason to send someone to jail for 25 years.

In your submission on the Bill, you may wish to suggest that the original list of "strike" offences be restored. You can find them in the original draft Bill, which is still on our website. They are the truly serious offences: murder, attempted murder, manslaughter, rape, aggravated robbery and the like.

It may be sensible to suggest that there be two lists in the Bill – the current list for strikes one and two, and a shorter list of only the most serious offences for which the sentence can be 25 years to life.

So What's Next?

If 'Three Strikes' is not supported by National, our original Bill will go into the ballot for Private Members' Bills and we will have another try.

If we manage to get 'Three Strikes' through, my next target is truth in sentencing – a very long-standing ACT policy. If there is one Policy that finds widespread public support, it is that. Most people – including most lawyers – simply cannot see the sense in having a sentencing regime where no sentence means what it says.

I also wish to address an issue very close to many ACT hearts: self defence. The current law on the degree of force one can use to defend oneself is quite unclear, and is certainly unsatisfactory.

Many people will have read the front page story in the Herald last Saturday about a 75-year-old lady who whacked an aggressive young person trying to get into her house with a rolling pin. The police arrived to find him very much the worse for wear, crying, and having wet himself. I applaud that lady. She should not have been forced to take that action, but she should be commended for having taken action to defend her house and home.

I personally favour a regime under which a person is free from liability for any action they may take to defend themselves while in their own home. I am aware the French have – or at least have had at one time – a law under which a person could take whatever steps necessary to defend himself and his possessions when inside the home.

In other words: a burglar caught inside one's home must take their chances. I have a fairly good idea what Lech Beltovski and Andrew Jollins would think is the appropriate response!

I propose to draft a Bill and send it to the policy committee for its approval and, if necessary, alteration. I understand that there has been some disquiet about the time policy has taken to work its way through from the "that's a good idea" stage to firm policy. I see this as something of a pilot project and will be asking the policy committee to make whatever alterations it sees as necessary to my draft, to convert that draft into a policy statement, and throw the ball back to me to try and make it happen.

Prisoners' Rights

Many of you will have noted the impact on the public during the election campaign of stories about under-floor heating and plasma TVs in prisons. In one of my first Question Times, I managed to get the Minister of Corrections to confirm that future prisons would not include under-floor heating systems and plasma TVs in every cell. That's a good start – but it is only a start.

It makes my blood boil to hear about pensioners having a crumpet for tea and going to bed at 7pm to keep warm in the winter because they can't afford adequate food and heating.

Although some people – even within the Party and, perhaps, this audience – have accused me of being indifferent to human rights, it is a given that prisoners should be entitled to decent and humane treatment while in prison. I firmly believe that that is right.

That said, I believe we need to take a good look at whether prisoners should continue to have all the rights accorded to you in the audience other than the right to vote, as is currently the case.

In 2007 I visited prisons in Arizona along with Garth McVicar of Sensible Sentencing. Despite Left wing propaganda to the contrary, prisoners there are well-fed: I shared a lunch with some of them, which was not pre-arranged. They are entitled to free medical treatment and all other basic human rights – the irony being that, in the US, the care is probably better in prison than they are entitled to outside.

It is accepted in Arizona that, prisoners have the right to be treated humanely – there is of course a prohibition on cruel and unusual punishment in the US Constitution – it is also widely accepted that prisoners are NOT entitled to the same suite of human rights as the rest of us.

Prisoners immediately lose their right to privacy, for example - their crime, sentence and photograph are posted on the internet as soon as they are sentenced. A New Zealand criminal defence lawyer of my acquaintance thinks this is an excellent idea, and would be a significant factor in deterring others.

Prisoners in Arizona lose their right to smoke, to wear what they like, to have their hair however they like, and a host of other rights. It may or may not be a coincidence that the atmosphere in the prisons we visited was starkly different from the atmosphere in ours.

I realise that my personal views on this area will not be shared by some – perhaps most – ACT members. I intend to draft a policy on this area also, and refer it to the policy committee for consideration and alteration as it sees fit. Members who feel strongly one way or the other on this should make their views known to the policy committee. I intend to keep that committee busy for the next two-and-a-half years.

ENDS