Baby Kahu Kidnapper's Bad Choice Of Law
Monday 27 May 2002
If Baby Kahu's kidnapper had pleaded not guilty he could have been out of prison in only four years, ACT Justice Spokesman MP Stephen Franks pointed out today. Instead he will be in prison for just over seven-and-a-half years.
Mr Franks pointed out a little known section in the Labour Government's flagship Sentencing Act. The precise words in section six are: "An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty". The section goes on to say it "applies despite any other enactment or rule of law". It offers potential sentence reductions to thousands of offenders arrested but not sentenced before the start of the new law. It means no sentences for those people can increase.
"All Terence Traynor needed to do to cut his effective sentence in half was have his lawyer drag out the case so his conviction and sentencing came after 1 July when the reduced penalties of the new law take effect. That would have been easy with a not guilty plea.
"Under existing law, all sentences are automatically cut by a third, so Traynor's eleven year sentence goes to seven years eight months, less the month spent in custody since his arrest. Under existing law there is no parole for a serious violent offence, so the seven and a half years is what he will serve.
"Under the new law all offenders are eligible for parole at one third of the sentence, and however terrifying the crime the Parole Board must let them out if they are not "an undue risk to the safety of the community". The Board has no power to block early release just because it will nullify the judge's sentencing intention to deter other kidnappers.
"Under the new law, Traynor could in 2006 cite his comparatively non-violent record, and the Parole Board would have had to recognise that at age 58 Traynor would be unlikely to risk another such offence, because his would be the first door the police would knock on if something like this happens again.
"Traynor has now missed his chance. The judge gave him the nominal eleven years as a discount for pleading guilty. In the circumstances it was a good bargain for the Police and most of us, even though we might think seven years and eight months is pathetic for a kidnapper of babies. But it is an own goal for Traynor and for the Government, which wants to let prisoners out earlier.
"Traynor may not have realised he was missing out on the reduced penalties for violent crime under the new law, but we should expect the lawyers for other criminals to latch on to this. Over the next month some may be liable to their clients if they don't start delaying trials to get this unjust reward for wasting precious police time and legal aid money.
"ACT's Truth in Sentencing policy will abolish parole and early release. An eleven year sentence will be exactly eleven years, with a period of compulsory supervision after that. Truth in Sentencing will make irrelevant all such cunning calculations and tactical opportunities for the lawyers" said Stephen Franks.