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Another Judge decides plain effect of law is “manifestly unjust” – dispenses with it

  • February 11th, 2016

The High Court decision in Kingi, delivered today, is that it would be manifestly unjust to apply the three strikes requirement of life without parole to a murderer warned of that likelihood in sentencing for robbery only a few months before he murdered.

Kingi bullied and robbed an inoffensive old man in public toilets then returned to kill him because he’d failed to show  ‘respect’ when Kingi demanded money, food then his car keys. Kingi of course had plenty of violent form.

So yet another High Court judge rationalises without apology his feeling that he is above the three strikes law. Another insider who considers the law his to determine, expressing the judiciaries’ resentment at being told how to treat standard issue recidivist violent criminals. In my opinion the reasons boil down to nothing more compelling than confidence that they are more virtuous (compassionate at the expense of others)  than elected representatives and the disrespectful people who elect them.

This generation of judges will bring down their own house when a Parliament finally imposes something like matrix sentencing. Some day Parliament will have to clean the judicial stables. The judges’ self indulgent waste of resources on elaborate calibrations of sentence is based on no evidence based connection to any of the purposes of sentencing. Without attempting to find out how their actions affect deterrence, retribution, rehabilitation, or even prevention (incapacitation), they cite each other in a self referential charade of reasoning, only occasionally linked to the Sentencing Act. Ritual references pretend subordination to its directions. But its contradictions leave them ample scope to ignore features they don’t like. For example, it directs judges to impose maximum sentences for the worst cases. How many 14 year sentences have you seen for the offences subject to that penalty? How many life without paroles? None.

Kingi instead heard a long mournful bleat before getting an 13 years before parole, well below the supposed starting mid point of the pathetic judicial tariff for murder. If I were the victim’s family I’d have heard the sentencing decision more as a respectful apology to the murderer for having to imprison him at all.

This judicial aggrandisement negates the simple unmistakeable message that three strikes was designed to send. It will deprive New Zealand of the dramatic drop in  offending rates seen in the US after President Clinton’s reforms confirmed to criminals that a new sheriff was in town – not the old suckers for sob stories.

Many judges moralise in decisions. They appear to assume some deterrent and denunciation function for penalties. But in this case the judge appears not to give any weight to those purposes of the law change. Simple rules without excuses were intended by Parliament to save thousands of prospective victims from suffering and loss.

The judges who have decided not to apply the law because they feel it would be unjust scarcely camouflage their real intention. To me the public justifiably questions their adherence to the judicial oath to apply the law. But to be fair, they are bound to act in accordance with the collective view as expressed by superior courts. And those courts have form in negating the intention of criminal law changes. I experienced first hand their contempt for the home invasion law successfully promoted by my ACT Party predecessor, that Labour later repealed.

The judgment should have been one paragraph long:

You were warned. Parliament has deliberately restricted our discretions to send a clear message to people like you. I will be betraying our constitution, and undermining the law if I waste more time in running through the complicated mitigating and aggravating considerations superseded when Parliament passed that law. So you are  sentenced according to the law to life imprisonment without parole. Take him down.

Instead the judge mentions the three strikes direction formulaically, then goes on for pages adressing “Mr Kingi” applying the baffling methodology that would have prevailed under preceding law. He finishes by sentencing as if the law had not been changed, except for a plainly ritual fresh three strikes warning.

It  even includes the inflammatory express reservation that if Kingi commits yet another murder it might still be manifestly unjust to apply the mandatory three strikes life-means-life sentence.



So we are all equal before the law – judiciary excepted.

  • Michael Ellis
  • February 13th, 2016
  • 7:58 am

I’ve taken the time to read the Kingi decision and it appears that Judges are reluctant to effectively sentence people to 50-60 years in prison when the worst previous sentences (for the likes of William Bell, Bruce Howse and Graeme Burton) are 25-30 years. One can only hope that the Crown is sucessful in appealing the Harrison sentencing as it will create that precedent. Especially Harrison appears to be the poster boy for LWOP as he met the strike criteria and this is also his second homicide conviction.

  • Jim Rose
  • February 13th, 2016
  • 12:46 pm

Thanks for this. I must read the judgement.

It will be enlightening to find out how parliament did not know that young people commit serious crimes when it passed the law

  • John
  • February 13th, 2016
  • 9:33 pm




  • MikeNZ
  • February 17th, 2016
  • 10:39 am

Sadly, I think we’ll have to skop them all out before it’ll come right.
After all why did we have to force through the Three Strikes law in the first place?
because they weren’t doing their job.
Sad but true.

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