A peripheral group of political zealots want to introduce the UK's approach to punishing burglary into NZ. Except they don't really want to do that at all.

It seems a bit odd to be devoting a post to a policy proposal coming from a party with just 0.5% support in the opinion polls - a bit like taking seriously United Future's crowing over the victory it has just won by way of the Game Sustainability Council. ("The what?", I hear you ask ... thus bearing out my point.)

But when the party in question is ACT, a sort of atavistic reflex kicks in amongst us liberal intelligentsia types, and we really can't help ourselves. So here's ACT's new "three strikes" proposal for burglars for you to look at if you want to - essentially it says that anyone over 18 who gets a third burglary conviction has to go to jail for at least three years - before I give you my criticisms of it.

Let's start with the obligatory "I've been a victim too!" story. Having your place broken into and your stuff taken really sucks. It's happened to me twice, and while neither were particularly "serious" criminal events in that the value of the property taken was minor, the damage to my place was minimal, and I was not left feeling overly insecure in my home, I didn't particularly like it happening. So I'm not going to say that burglary "doesn't really matter that much."

But going from that starting position to saying that ACT's proposed response to the crime of burglary is a good idea requires a leap I'm not prepared to make. In fact, I think that the way ACT has sold it's "solution" is quite duplicitous.

First of all, while any burglary is bad and so on, some perspective is in order. The 52,247 burglaries that were reported to the NZ Police last year sound like a big deal. But when you consider that this is some 7,300 fewer offences than were reported just two years ago - a fall of some 12.3% - it is not as if we are heading up the face of a mountain with no peak in sight. In fact, the problem already is getting smaller.

Nevertheless, ACT has made a great deal of noise about how its policy proposal is based on a UK model that has worked wonders to drop burglary rates precipitiously.

As in New Zealand, burglary  [in the UK] was out of control and given a low priority by the police and the courts. A Labour government passed a three strikes law whereby a third conviction for burglaries earned a mandatory three years in prison.

Burglary in England has fallen by 35 percent.

"Wow!", you might think. "A 35 percent drop represents a massive decline in offending! This must prove that this policy is the right one to adopt!"

Until you realise that, according to this Guardian report, total reported crime in the UK has fallen by 38% since 2002 without the widespread use of "mandatory minimum" sentencing policies. (Yes, I know those aren't the same time periods, but I can't find anything that exactly matches ... and I think it's enough to make us question the simple causal claims that ACT are making (or, at least, heavily implying) between mandatory-minimum sentences and the drop in burglary offending.)

And in the meantime, burglaries here in New Zealand also have declined by 29.9% since 1999 - and by an-almost-identical-to-the-UK 33.7% since 1998. So any claim that this policy represents a magic bullet to fix an out-of-control problem ought to be taken with a large grain of salt, at the least.

Furthermore, ACT's proposed policy reflects the UK model in the same way that all those Hollywood movies are "based on a true story". Yes, it is true that back in 1999 the then-Labour Government brought in a policy under which third-time burglars of domestic premises face a mandatory-minimum three year jail term. However, that's about it in terms of similarities between the two policies.

(Before I describe the differences, a quick word for anyone who thinks that because Tony Blair's Labour Government adopted a weaker version of what ACT proposes, the NZ Labour Party now somehow ought to back ACT's quite different policy. That is just silly talk. And that is all.)

The UK version of the policy allows for the standard rules on release from prison - meaning that people sentenced to the three year term usually are out "on licence" after 18 months. ACT's version allows for no parole at all. You serve the full three years irrespective of how you behave while in prison, or any steps you may take to rehabilitate yourself, or the like. Then you are released back into the community with no oversight of or controls over your behaviour, or requirements to undertake any integrative steps whatsoever. You will, however, have had a good long education in how to become a better criminal. What could go wrong?

The UK version of the policy allows a judge to give a sentence less than 3 years if either of the following circumstances apply:

(a)   The defendant pleads guilty – in that case the minimum sentence can be discounted to 80% of 3 years (about 2 years 5 months)

(b)   There are particular circumstances (relating to the offence or the defendant) that make it unjust to impose a 3-year sentence in all the circumstances – in that case, the Judge can impose any sentence.

ACT's version has no discount for guilty pleas (take a second to think what incentives that sets up for defendants facing their third burglary charge and ask how that might impact on the court dockets!). And it only would allow a judge to give out a sentence of less than three years if it would be "manifestly unjust" to apply the mandatory minimum. Whether that stronger phrasing will make a difference in practice is a moot point, but the architects of this proposal seem to think it ought to.

Finally, the UK version of the policy only applies to domestic burglaries - those of a person's home. ACT's version deliberately applies to all kinds of burglaries. And over on Public Address, Graeme Edgeler has pointed out just how widely this offence applies; meaning that it's not just your archetypal smashes-a-bedroom-window-and-steals-your-TV offender who will be targetted by the policy.

So any claim that ACT is "just proposing what the UK has done for 15 years" needs, once again, to be taken with more than a grain of salt. Their's is a quite different policy that applies in a quite different way.

There is then a number of other aspects to ACT's proposal worth noting. The "third strike" may have to come after an offender turns 18, but any previous "strikes" (in terms of burglary convictions) obtained prior to a person's 18th birthday count. The "third strike" may have to come after the law is passed, but any "strikes" (in terms of burglary convictions) obtained prior to the law's passage count. Meaning that under ACT's proposed law a person convicted 10 years ago of two burglaries as a 14 year old would face a mandatory three year term of imprisonment for climbing over a scrap metal dealer's wall and taking a car battery.

Of course, whether that would actually happen is then a moot point. In the UK, the Tory press frequently complains that burglars (including repeat burglars) are not being jailed often or long enough. That's because judges, confronted with the actual human beings who are committing these crimes, tend to see things in more nuanced terms than one-line political slogans and find loopholes in the law to take account of that. So any confident prediction about how the law "will" apply needs to be discounted on that account.

And anyway, any sort of sober analysis of this announcement is probably wasted. It's primary point is to try and get a headline; "ACT will get tough on burglars!" Whether the proposal will do any good, or whether it will really do anything at all, is then a bit beside the point.

Which is kind of fitting, delivered as it was by an academic philosopher .

Comments (6)

by George Hendry on April 23, 2014
George Hendry

Thanks for the informative research Andrew.

Why do you think this might be?

Well, back in history, there was King John who always needed the Sheriff of Nottingham to do his work of robbing the poor. History repeats, and King John (who can't be voted out because you don't do that to kings) needs the Sheriff of Epsom (and his accomplice the Sheriff of Ohariu) to do his dirty work and alloiw him to look more kingly by saying 'tut tut' every so often while keeping his own hands clean.

Meanwhile Robbing Hoodies climb over fences at night, trying to make the promised trickle down actually work. And the Robber Barons continue to work on their secret Magna Carta for the good of all...

 

by Andrew Osborn on April 23, 2014
Andrew Osborn

Yeah it's just the same as [ed: and the rest redacted for offensive idiocy ... if you want to have a poke at me, fine. But don't be a jerk.]

by Andrew Osborn on April 24, 2014
Andrew Osborn

Apologies if my analogy upset you. Please allow me to explain more fully:

The point I was making was that if you excuse one type of criminal activity which is a blight on society, then you're on a slippery slope for being an apologist for the next in line.

Burglary is a very serious issue and the low clearance rate is real concern for the police and society in general. As someone who has been burgled four times in NZ I can tell you it can have a profound psychological impact, especially on women. 

In the case of serial offenders the probably outcome is that the buglar will eventually be 'disturbed' whereupon it becomes aggravated burglary or maybe rape. There may be evidence that some burlgars do it partly for the buzz and the next bigger buzz is to assault the homeowner as part of the package. An example is here: http://www.crime.co.nz/c-files.aspx?ID=11

So I fully support locking up serial burglars for longer periods.

 

by Andrew Geddis on April 24, 2014
Andrew Geddis

@Andrew,

If you don't understand why throwing out a casual "rape analogy" is inappropriate, then that ultimately is your problem. But it will attract a deletion on this site, because it is a bad thing for you to do. 

You will, of course, accept that your implicit claim that I am "excusing" burglary wilfully ignores my statement that "I'm not going to say that burglary 'doesn't really matter that much.'" In fact, you don't point to any evidence at all that I am "excusing" burglary. So your point is opaque, at best.

Moving on, then, you say that the problem is "the low clearance rate" for burglary. True. Agreed. ACT's announced policy, which is what this post is about, does nothing about that issue.

Finally, even if "longer sentences for repeat burglars" is a good idea, ACT's policy isn't. Hence my post.

by Graeme Edgeler on April 24, 2014
Graeme Edgeler

I think you are being a little unfair on ACT's proposal in a couple of places:

The UK version of the policy allows for the standard rules on release from prison - meaning that people sentenced to the three year term usually are out "on licence" after 18 months. ACT's version allows for no parole at all. You serve the full three years irrespective of how you behave while in prison, or any steps you may take to rehabilitate yourself, or the like. Then you are released back into the community with no oversight of or controls over your behaviour, or requirements to undertake any integrative steps whatsoever. 

...

ACT's version has no discount for guilty pleas (take a second to think what incentives that sets up for defendants facing their third burglary charge and ask how that might impact on the court dockets!).

ACT's proposal does not prohibit release on parole for third strike burglars. Many burglars will receive sentences in excess of three years. For recidivist burglars, given R v Southon, this has become much more common. Starting points for repeat burglars are often in excess of four years.

Given this, there will still be reductions for guilty pleas. Surely a person who is highly likely to be convicted in light of the evidence will be able to see that a five year sentence with a 3-year non-parole period and a 3.5 year sentence with a non-parole of 3 years are different beasts.

The speech and policy make both of these points reasonably clearly.

by Andrew Geddis on April 24, 2014
Andrew Geddis

ACT's proposal does not prohibit release on parole for third strike burglars. Many burglars will receive sentences in excess of three years.

But it does for third strike burglars sentenced to the bare mandatory minimum three years. In addition, a person sentenced for a more-than-third strike burglary to (say) 3 years 6 months won't become eligible for parole until at least 3 years are served ... as opposed to a person sentenced to 3 years 6 months on any other offence. The UK proposal doesn't have any different release conditions on burglars sentenced under its "mandatory minimum" scheme from persons serving a "normal" sentence. Hence they are different proposals. Which is why I called them such.

For recidivist burglars, given R v Southon, this has become much more common. Starting points for repeat burglars are often in excess of four years.

Making me wonder, the point of this proposal is ... ?

Surely a person who is highly likely to be convicted in light of the evidence will be able to see that a five year sentence with a 3-year non-parole period and a 3.5 year sentence with a non-parole of 3 years are different beasts.

Oh, sure. But, by the same token, a person addicted to synthetic cannabis who burgles a house and two scrap metal yards in a week in order to get the money for his drug and who would peviously have not been sent to jail at all (because they aren't a hard-core, recidivist burglar who targets homes) would face the choice of pleading guilty and likely going to jail for three years, or fighting the charge and likely going to jail for three years.

 

 

 

 

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