First strike of the 3 strikes - the worst of the worst?
First strike for new crime law
An Upper Hutt man has been served with New Zealand's first warning under the controversial "three strikes" law after being convicted of groping a woman. Dwyane Christopher Mercer, 32, was convicted in Upper Hutt District Court last week after pleading guilty to indecently assaulting his friend's partner. Indecent assault is one of 40 serious violent offences that attract "strikes" upon conviction. The law came into force on June 1.
So we get our first look at the 3 strikes in action, now remember our friendly baying mob from the Sensible Sentencing Trust and the National Party told us this law was for the worst of the worst, that we were going to remove parole (the only mechanism we have to moderate behaviour inside prison) for the worst of the worst.
Critics (and I put myself in that group) have argued this won't be used on the worst of the worst and a whole bunch of people will get caught by this legal drift net, throwing even more NZers into our underfunded, corrupt and violent prison nation to feed the private prison industry more revenue. This will see more damaged individuals emerging from the prison system without any skills to moderate their own behaviour (because Parole has been eliminated) which will cause even more crime because these individuals with no skills to moderate their behaviour will explode once released only to be thrown (to the glee of the private prison industry) straight back into prison.
So this is our first strike (remember this law is for the worst of the worst) so what happened here? Dwyane Christopher Mercer got drunk, stayed at a woman's house, entered her room, tried it on, groped the woman over her clothes, she screamed and told him to leave, he leaves.
Defence lawyer Phyllis Strachan said: "The touching was over clothing and I think that is important.
Now this sexual assault was pretty awful for the woman involved (it is her home, she should never have to feel fear in her own space) and Dwyane Christopher Mercer obviously let himself down horribly as an individual with his drunken pursuit of someone who clearly wanted nothing more than to sleep.
As awful as that situation was though, how on earth could his groping of a woman through their clothes EVER be considered 'the worst of the worst'? In the pantheon of awful acts human beings can commit on one another, this act deeply underwhelms. This law will NOT be used on the worst of the worst as we have been conned into thinking, Dwyane Christopher Mercer's actions while illegal and deplorable, clearly are NOT the worst of the worst. This bullshit 3 strikes and you're screwed will produce a prison nation starved of funds for rehabilitation. The toxic venom of this weeping wound will then slowly drip back into society, but the thing that really will annoy me is having to watch the puzzled look on Garth McVicars face 5 years from now proclaiming this wasn't what he wanted as increasingly violent prisoners start getting released from a no parole prison environment which has simply warped and damaged them further.
We have a media who leads if it bleeds (in March 2006, crime was 22% of the monthly One Network News and was in the headlines 29%, but by March 2010, crime was only 14% of the monthly One Network News yet was in the headlines 35% of the time) so the viewer is bombarded with news designed to push their buttons for ratings gain, but the knock on impact is that residual hatred that is created by the media's myopic focus on ratings driven crime leaks into the political sphere where it gets twisted to promote kneejerk 'get tough on crime' crap which push for punitive policy which only produces counter productive outcomes (this fear of crime that is over promoted by the ratings hungry media will of course benefit the new Police Political Party running in Council elections THIS YEAR that National rammed through under urgency last week).
Look at the smoking ban in prison, it's not being done for prisoner health, it's being done because the over crowding demands double bunking and the Government would face a myriad of second hand smoke claims from former prisoners. Angry nicotine addicted prisoners forced to go cold turkey so that they can be locked up with other nicotine addicted prisoners who are also going through withdrawal? I can’t see how this double bunking policy won’t bring anything other than sunshine and rainbows.
Well done NZ! Our ability to implement counter productive policy to feed our vengeance never ceases to amaze me.
UPDATE
Reflections in the Hand Mirror
I think the Hand Mirror is one of the top 10 blogs in the NZ Blogosphere. Their well reasoned, well argued critiques on a myriad of social justice issues often have me hurting my neck because I am nodding my head in agreement so often. I have known Julie almost 2 decades from Uni and have an immense amount of respect for her intellect and her personal ethics, so to be called on something I've blogged about by her demands a moment of considered reflection.
At no point was I suggesting Mercer should not be punished, my point was that his offending, his indecent assault, was not the 'worst of the worst' as sold by the supporters of this 3 strikes bill and the assertion by Julie that I was in some way attempting to defend sexual assault seems well off balance. I respect Julie immensely but on this issue we simply won't agree.
posted by Bomber @ 7:40 am
30 comments
30 Comments:
Well done NZ! Our ability to implement counter productive policy to feed our vengeance never ceases to amaze me.
Well done bomber.
You inability to recognise a serious crime because of you ideology never ceases to amaze me.
He sexually assaulted her.
Over the clothes, under the clothes, such justification appalls me.
Seriously, if you don't want a strike against you, don't sexually assault your mates girlfriend.
I believe you will find many people agreeing with you on this one, over on kiwiblog.
In your desperate speed to denigrate me personally anonymous poster (and ironically it's always the people without the strength to post their own name to a post that makes such personal attacks), you fail to understand what I'm saying.
The sexual assault was awful and of course should be punished, but was this offending the worst of the worst? No, it clearly isn't the worst of the worst.
The defence against the criticism that this 3 strikes law would blow out the prison population by unintentionally netting prisoners whose offending is on the lesser scale was that the 3 strikes would only be applied to the worst of the worst.
The offending in this case IS NOT the worst of the worst, that doesn't mean he shouldn't be punished, it means the defence that this law wouldn't net prisoners on the low end of offending isn't true and we will get an explosion in the prison population which will please the private prison industry and set us on the future of worse offending committed by more and more damaged human beings ejected from an underfunded, overcrowded, corrupt State prison system.
By attempting to anonymously insinuate I am a lesser person for articulating a position that takes into account the wider context alongside the need to punish appropriately for a sexual assault that would have been terrifying for the woman concerned, I think you have little to offer anon.
A different Anon says:
Hahahahahahaha well said Bomber !!!
I initially wasn't chuffed with this 3-strikes bollocks, but strangely enough I see the point of it a bit better following this incident. Up to now, the justice system has positively assisted Mr Scumbag Mercer in being able to dismiss his crimes as just being a bit of a pissed wanker, no big deal really.
Now, the justice system is forcing him to face up to the fact that sexual assault is a serious crime, that women generally don't find it trivial to be woken up by someone molesting them in their bed, that being pissed isn't an excuse, and if he keeps it up he's looking at some hefty jail time. As far as I can see, that's all good.
All good to me too. If Mr Mercer commits (and is convicted for) this same offence another 2 times, then I see no problems with him not being eligible for parole that 3rd time. Parole is likely granted (the first two times) because we (the system) believe that the person is capable of not offending again. If they betray that trust twice, then they've put themselves into this situation. I can't see that you can have things both ways - i.e. saying on one hand that parole is "the only mechanism we have to moderate behaviour inside prison", yet the fact that they've offended 3 times shows that parole actually hasn't worked, so why keep giving it?
Of course this is an even stronger argument in the case where subsequent offences are of a greater degree of severity.
Where I do agree with you is on the need for ongoing support and rehabilitation, no matter whether they're eligible for parole or not.
Again PM, I am not suggesting anywhere that Mercer is not punished, of course he is to be punished. But is his offending the worst of the worst? Within the sexual assault band, is his offending the worst of the worst? It clearly is not, now that is not to insinuate that his offense wasn't serious to the woman assaulted, of course it was, but within that band of offending, what he did was low. The safeguard that this punitive 3 strikes legislation wouldn't cause a prison population explosion was that it would only be used on the worst of the worst. I question if Mercer's offending, within that band of offence, was the worst of the worst, because it seems what is being argued now is that all 40 offences are so heinous in themselves that the action of them demands an extra punitive incentive not to do them? Is that where you are shifting the goal posts on this argument, by redefining the 'worst of the worst' as those acts in themselves? Because the latter definition you are adopting does open that drift net up doesn't it?
Greg, you seem to be unfamiliar with the law and appear to be softening the harshness the Sensible Sentencing Trust were able to inject into it via ACT policy dominance...
Three strikes law passes
The law will see offenders who commit one of the 40 crimes sentenced as normal, with the usual parole eligibility, for a first strike.
A second strike will bring a sentence under normal criteria, but the jail term must be served with no parole unless doing so would be manifestly unjust.
A third strike will bring a maximum sentence for that crime, with no parole.
...as for parole, I can't see how you can write parole off when our current underfunding of resources to rehabilitate any of these prisoners (even just literacy for Christ's sakes) provide such bleak prospects.
And let's not pretend that there are not alternatives to this punitive style of punishment. The 'There is no alternative' from the hang em high brigade is not just compounding the problem to feed news media generated crime politics, it's going to cost us a fucking fortune while providing little sense of justice for the victims.
I don't believe anyone claimed only the worst of the worst would ever get a strike. That's why it's 3 strikes not 1. Aye?
Most people manage to stumble through life without a convcition for indecent assault. So from now on Mr Mercer needs to be a bit more careful about where he puts his hands.
Bomber, No matter where on the scale the offending lies, Sexual Assault IS the worst of the worst. Thats why the charge is one of the 40 offences.
You may disagree on this, however.
Thankfully it seems that at least some judges share my view on this.
And thats all that really counts. :)
Anon above - so you are redefining the 'worst offenders' as 'worst offences' and would argue that all 40 offences are so heinous that in hemselves require this extra punitive measure?
As for your assertion the judges agree, there are many in the Judiciary who disagree with ill thought out knee jerk legislation anon.
JP - you may have missed it, the press release was pretty misleading...
Worst offenders will face three-strikes sentencing
I'm with Anonymous. I may have some issues with the 3 Strikes law, but to posit it's first use on a "lowly" sexual assault is to negate the seriousness of sexual assault.
You do say: "Within the sexual assault band, is his offending the worst of the worst? It clearly is not, now that is not to insinuate that his offense wasn't serious to the woman assaulted, of course it was, but within that band of offending, what he did was low."
You start out by implying empathy for the victim, but because the offending doesn't directly affect you, then hey, it's not so bad. You just completely negated the seriousness it has for the victim.
Sexual assault does not have some sliding scale of heinousness. To imply that unless it was full penis-in-vagina rape, other types of sexual assault just aren't "serious enough to be taken seriously".
Would you have preferred this offender to leap straight into p-i-v rape so that you could feel justified about your claims of "seriousness"? Wouldn't be better to check the offender's behaviour BEFORE it gets to that point...with something like a 3 strike law?
I sure as hell would rather be touched up by some drunken creep I knew in my own home than violently raped by a terrifying stranger on a city back street.
Lindsay Mitchell said...
I sure as hell would rather be touched up by some drunken creep I knew in my own home than violently raped by a terrifying stranger on a city back street.
Or a third, more preferable option surely would be neither of these things.
Lindsay, because sexual assault is not as bad as rape, does that lessen the crime of sexual assault?
I mean, surely you would prefer to be raped than murdered.
And, surely you would prefer to be murdered than your child raped and murdered?
So know we have you being murdered as not as bad as other crimes.
Slippery slope much?
Anon, Punishment (retribution or whatever else you choose to call it) has always been calibrated according to the seriousness of the crime. That is what Bomber is discussing here. There was most certainly a perception intentionally fostered by the advocates of three strikes that the legislation would prevent another Graham Burton-like or William Bell-like murder(s). Not another low grade indecent assault.
You may be happy for the three strikes regime to capture all sexual assault but that is not how it was portrayed. And people who opposed the bill warned that this is what would happen. It is the three strikes legislation itself that stands at the top of a slippery slope.
"It is the three strikes legislation itself that stands at the top of a slippery slope."
We're all in agreement on that. We're not arguing 3 Strikes isn't going to cause problems.
But lookit, it already has. It has Bomber and yourself arguing that that sexual assault isn't "serious". Can you imagine what message that sends to some victims? Can you imagine further what message that sends to men?
It is typical reinforcement to men that sexual assault and devaluation of women is OK.
I'm actually very happy that 3 Strikes has caught a sexual assault. Maybe it will send a message to this assailant, and men in general, to think twice about it. Since I'm not a believer in punishment being the coverall to change behaviour (I believe in all that hard stuff, like rehabilitation, social awareness and teaching our population from the ground up/early age - what sort of "nanny state" ideology is that huh?), I may be in dream land. But it's a start.
Moose what you are purposely missing, and I'm not sure why, was that this law was sold as dealing to the the worst of the worst, what happened here was not the worst of the worst.
I've noted those defending this redefinition of the worst of the worst now argue it is the offence, not the offending that bypasses the criticism that this 3 strikes law will end up netting people who were not the worst of the worst.
The offending is serious because it is sexual assault but within that band of offending, his offence wasn't the worst of the worst. 3 strikes will lead to our prison population exploding, only to the benefit of the private prison industry.
Can I at least get a promise form you Moose, that you won't act with any surprise that prisoners coming out of this dysfunctional prison system go on to commit worse crimes? AT least promise me that.
Your claim that I am promoting sexual assault is a little beneath you and typical of the level of debate punishment always seems to collapse to.
The reality is the screaming mob have won the debate in NZ, and our prison nation will only continue to build an empire of suffering, the toxic weeping wound of which will continue to provide moments of confusion on the face of Garth McVicer who will scratch his head and exclaim, 'I don't understand why they are worse after we've locked them up without any rehabilitation services'.
So tell us Moose, David Garret claims this 3 strike slaw will reduce violent offending by as much as 20% - is that true?
I think you are being ridiculous Bomber. You are acting like this guy has already been locked away forever. He hasn't. And unless he commits two more serious crimes he won't ever be.
What has happened is that this guy, as well as the many that are sure to follow, has been given a serious wake up call that their offending must come to an end because they are no longer facing a string of minor sentences but one very long.
I can't see why you are so upset by people being put off committing more crime and more than likely a reduction in serious offending as these people realise they are on notice.
Bomber, please show me a link where David said 3 strikes WILL reduce violent offending by UP TO 20 PERCENT. Please.
I really cannot see why you defend Mercer, nor why you're so freaked out. It's his first strike - so he will receive the same sentence as he otherwise would have. Now however he will have to tread carefully and lay off the drink. If he can't do that, he deserves the extra punishments that will follow.
Garrett explains it better than me... hope you're not into censorship Bomber because it's a good read. http://www.davidgarrett.org.nz/?p=1044
Anon, Punishment (retribution or whatever else you choose to call it) has always been calibrated according to the seriousness of the crime. That is what Bomber is discussing here.
Precisely, and whilst sexual assault is not as bad as rape/murder, that in no way alters the fact that it is a serious crime in it's own right.
You may be happy for the three strikes regime to capture all sexual assault but that is not how it was portrayed.
I am indeed happy for sexual assaults to be classified under the three strikes rule.
In fact, I am shocked that you do not.
Moose what you are purposely missing, and I'm not sure why, was that this law was sold as dealing to the the worst of the worst, what happened here was not the worst of the worst.
FFS, why don't you stop and listen bomber.
You say its not a serious crime, we are saying it is.
Is it as bad as rape/murder? No.
Is it worse than tagging? Hell yes.
The offending is serious because it is sexual assault but within that band of offending, his offence wasn't the worst of the worst.
He denied he did it, then called the victim a slag, perpetuating the myth that it was the victims fault.
I see this guy offending again.
(he has, of course)
Can I at least get a promise form you Moose, that you won't act with any surprise that prisoners coming out of this dysfunctional prison system go on to commit worse crimes? AT least promise me that.
Groan.
So tell us Moose, David Garret claims this 3 strike slaw will reduce violent offending by as much as 20% - is that true?
Go ask Garret.
Anony moose
Ever stop playing the man?
Do you personalise every argument you have?
I think you are being ridiculous Bomber. You are acting like this guy has already been locked away forever. He hasn't. And unless he commits two more serious crimes he won't ever be.
Yes SD, it was a first strike, and I am saying the 3 strikes was supposed to be for the worst of the worst. Within the bandwidth of sexual assault it wasn't the worst of the worst. My point is, the argument forwarded was that 3 strikes would avoid locking up massive numbers as it was simply aimed at the worst of the worst is no longer valid, as this case attests! And as such those prison numbers, profits for the private prison industry and the entrenchment of crime politics all that wealth and power from incarceration provides.
What has happened is that this guy, as well as the many that are sure to follow, has been given a serious wake up call that their offending must come to an end because they are no longer facing a string of minor sentences but one very long.
If it is as easy to gain a strike as this case shows, your optimism seems pointless.
I can't see why you are so upset by people being put off committing more crime and more than likely a reduction in serious offending as these people realise they are on notice.
My God, you are right, there is no academic research at all that 3 strikes doesn't work and only creates more prisons. Silly me.
Bomber, please show me a link where David said 3 strikes WILL reduce violent offending by UP TO 20 PERCENT. Please.
http://tumeke.blogspot.com/2010/05/3-strikes-law-will-reduce-crime-by10-20.html
I really cannot see why you defend Mercer,
I'm not defending Mercer.
nor why you're so freaked out.
I've made the points regarding the Sensible Sentencing Trusts unfortunate influence over ACT and ramming through their medieval law and order policy.
It's his first strike - so he will receive the same sentence as he otherwise would have. Now however he will have to tread carefully and lay off the drink. If he can't do that, he deserves the extra punishments that will follows
As I said above it was a first strike, and I am saying the 3 strikes was supposed to be for the worst of the worst. Within the bandwidth of sexual assault it wasn't the worst of the worst. My point is, the argument forwarded was that 3 strikes would avoid locking up massive numbers as it was simply aimed at the worst of the worst is no longer valid, as this case attests! And as such those prison numbers, profits for the private prison industry and the entrenchment of crime politics all that wealth and power from incarceration provides.
FFS, why don't you stop and listen bomber.
You say its not a serious crime, we are saying it is.
You're attempt to personally smear me as claiming sexual assault is not a serious crime is beneath you. I also note that you then have the audacity after making such an insulting personal claim to write...
Ever stop playing the man?
Do you personalise every argument you have?
...you are unintentionally amusing, I'll give you that.
Sexual Assault is a serious crime, but the actions of this man, within that crime, is not the worst of the worst.
Is it as bad as rape/murder? No.
Is it worse than tagging? Hell yes.
Something 'worse than' tagging is acceptable as a reason to lose parole and face a maximum sentence? Well I wish I could be as loose with the definitions as you seem to be able to, but I dare suggest the law needs something a little more definitive if we are to avoid a massive increase in our prison population.
He denied he did it,
That should be a consideration in his sentencing, that doesn't make what he did the worst of the worst.
then called the victim a slag, perpetuating the myth that it was the victims fault.
You ant a sentence against people for perpetuating myths? Are you serious?
I see this guy offending again.
(he has, of course)
So that's a second strike isn't it? It's for an assault isn't it? He could get 2 strikes in the space of a month??? Surely that can't be true, those prisons will be filling up nicely won't they anon?
Can I at least get a promise form you Moose, that you won't act with any surprise that prisoners coming out of this dysfunctional prison system go on to commit worse crimes? AT least promise me that.
Groan.
I'll take that as a no anon?
Go ask Garret.
Well actually no anon, I can ask you. You are defending the 3 strikes, in your previous argument you said...
I am indeed happy for sexual assaults to be classified under the three strikes rule.
In fact, I am shocked that you do not
...I challenge you on Garett's assertion towards a policy you have stated you agree with and it's 'ask Garret'. You were happy to defend 3 strikes law when it supported your argument but want to walk away from it when the question gets hard?
Anon, your attempt to claim I'm in any way suggesting sexual assault is not a crime that should be taken seriously is slanderous. I am in now way insinuating or suggesting Mercer shouldn't be punished for a crime that is serious, I am saying his level of offending is not the worst of the worst and 3 strikes was sold as dealing with the worst of the worst.
I agree with Bomber here.
Clearly sexual assault is an abhorrent crime. However, this particular sexual offender is very much at the low scale of offending.
Sure, this offender should get the appropriate punishment, but he is not (on the basis of this crime, anyway) the Parnell Panther. He is not the "worst of the worst".
I struggle to follow your logic on this [well quite a lot you publish actually] and feel compelled to comment. If he does it again ....... exact/similar circumstances, what type of offender does that make him? Or a third time? Kin oath send him a message that if he does this - or any other of the specified crimes again then be warned - the new law will see you serving some serious time.
I'll say it again - I'm not attacking Bomber's assertions about 3 Strikes. I'm attacking his unthinking male privilege.
*shrug* You can throw words around all day long that we're "missing the point", but I can see until men put aside their biased privilege they never will understand, nor attempt to understand, why others will argue that any sexual assault on the spectrum is serious.
Instead of saying your point over and over (yes, we get it), how about you stop for a moment and listen to what proponents of rights for sexual assault victims - and women in general - are talking about. And that is if you keep dismissing sexual assault as less serious, you are reinforcing the patriarchy.
And btw, sexual assault IS rape, whether a penis and vagina are involved. Would you like me to go into the many ways it can be perpetuated without a penis? To dismiss those many variants, dismisses womens/victims agency.
There's no further use arguing this until men stop leaping to each other's defense because they don't want to be confronted with the reality of what sexual assault really means to women, and society in general.
This discussion has gone off the rails somewhat - the offence is INDECENT assault, not sexual assault - which has a much wider definition.
Indecent assault includes an unwanted kiss to the cheek!
Thank you Moose, I wait with baited breath for your 'all men are rapists post'. You continue to smear me with the claim I don't think sexual assault is serious, that is simply not true. This law was sold as the worst of the worst, Mercer isn't the worst of the worst. That I can't say that and connect it to the 3 strikes legislation because you accuse me of lessoning sexual assault is something the readers can decide for themselves.
I hope Moose you spend as much effort into forcing this Government to overturn their cruel ACC rape counseling policy as you have at trying to smear me as a sexual assault apologist.
Anon said:...
If he does it again ....... exact/similar circumstances, what type of offender does that make him? Or a third time?
If he keeps up with this sort of offending, then it would make him a nuisance. Repeats of this sort of offending still wouldn't make him "the worst of the worst". Sure, his offending is bad from his victim's point of view, but someone who does a lot of drunken groping is not really a menace to society. What he needs is help with drinking and appropriate behaviour.
If this had been a plain old ordinary assault, then there is a big difference between punching a "friend" in an argument and beating someone with a cricket bat and leaving them in a coma. The law generally recognises this. The 3 strikes law, seemingly doesn't. Someone who gets in a drunken fight three times is not "the worst of the worst". Someone who savagely beats someone once quite probably is.
If he gets convicted of this "nuisance" crime (as you so condescendingly put it) three times he will still only get the full sentence for that "nuisance" crime.
It isn't like he is going to be sent down for the rest of his life - but don't let that get in the way of your hysteria.
Anon wrote...
If he gets convicted of this "nuisance" crime (as you so condescendingly put it) three times he will still only get the full sentence for that "nuisance" crime.
Exactly. And how will that help anyone, or solve any problems?
Has it protected society from the "worst of the worst"? Has it helped him rehabilitate? Has it done anything for his victim?
All that it seems to have done is remove sentencing/parole discretion from the legal system. What a victory that is.
Reflections in the Hand Mirror
I think the Hand Mirror is one of the top 10 blogs in the NZ Blogosphere. Their well reasoned, well argued critiques on a myriad of social justice issues often have me hurting my neck because I am nodding my head in agreement so often. I have known Julie almost 2 decades from Uni and have an immense amount of respect for her intellect and her personal ethics, so to be called on something I've blogged about by her demands a moment of considered reflection.
At no point was I suggesting Mercer should not be punished, my point was that his offending, his indecent assault, was not the 'worst of the worst' as sold by the supporters of this 3 strikes bill and the assertion by Julie that I was in some way attempting to defend sexual assault seems well off balance. I respect Julie immensely but on this issue we simply won't agree.
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