Webb DuncanDr DUNCAN WEBB (Labour—Christchurch Central): Oh thank you Madam Speaker. I'd just like to calm things down a bit and stop quoting from dodgy surveys and reports which are inconclusive. I thought what I'd start with are some basic principles of sentencing you know and so I did a little bit of reading and I had a look at the Sentencing Act. You know the first principle of the Sentencing Act is that the sentencing judge should take into account the gravity of the offending in the particular case including the degree of culpability of the offender". That sounds like a pretty good idea to me. Sentencing isn't some brightline question; it's a question of balancing the rights of the victim with the culpability of the offender. Here you go. This is section 8 of the Sentencing Act: "must take into account any particular circumstances of the offender that mean a sentence or other means of dealing with the offender that would otherwise be appropriate would in the particular instance be disproportionately severe". Should we throw that away? No I don't think so. I think that's an important principle.But what does the three strikes legislation do? Well it removes entirely any ability of a judge a sentencing judge to take any of the circumstances into account whether they be the victims' circumstances or the offenders' circumstances. It says "if on [the] occasion an offender is convicted of 1 or more stage-3"—that is third strike offences—"… [then] the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence." Well that is entirely disproportionate in many cases and entirely inappropriate.Of course then there's section 27 of the Sentencing Act which is actually something we do because of the partnership we have with Māori: allows an offender to seek a cultural report about whānau circumstances community and cultural background. Shall we take that into account when we sentence someone or shall we throw that out of the window as well? I think not. I think that the three strikes regime which ignores cultural background is a travesty which would utterly trammel our Treaty obligations.Then we've got section 9 which goes through aggravating and mitigating factors. Shall we look at aggravating and mitigating factors when we sentence an offender or should we get rid of that as well? Shall we take the age of the offender into account? No? Shall we take perhaps whether or not the offender pleaded guilty? That's an important one because we know that serious offenders who plead guilty have that taken into account largely because it's a much better outcome for victims. Victims are not put through the trauma of a trial and we need to be able to encourage that not to tell a third strike offender "Don't worry. Go through a full trial put your victim through another trauma because you get no discount for it." Oh and what about diminished intellectual capacity? Should we take that into account or not?Here's another little thing: the New Zealand Bill of Rights Act that everyone—Hon Member: Oh!Dr DUNCAN WEBB: Oh yeah I know you scoff at it but it's actually quite a good thing. On this side of the House we believe in human rights and section 9 says that "Everyone has the right not to be subjected to torture … cruel degrading or disproportionately severe treatment". And you know what? Here's a few words you might find familiar: that the three strikes legislation will result in "disparities between offenders that are not rationally based" and it will result in "gross disproportionality in sentencing" and "I consider it to be in contravention of the Bill of Rights Act."—great Attorney-General Chris Finlayson's words on this Act when it passed in the House.Look let me talk a little bit about an actual case the case of Fitzgerald that happened here in Wellington where a man was described as having longstanding serious mental illnesses and what did he do? He kissed a woman in Cuba Mall without consent. He grabbed her and he kissed her and that is an indecent assault. I want to recognise—the law report records—it was traumatic for the victim. He was up for seven years inside because he had two—this mentally disabled person who had serious difficulties was sometimes homeless was up for seven years in prison because he kissed a woman in Cuba Mall. And you know what? The Court of Appeal when it looked at it said this: "Mr Fitzgerald should be receiving care and support in an appropriate facility not serving a lengthy term of imprisonment. He has ended up in prison for a very long term in circumstances where he should not be there at all." That's what the National Party would have us stick with. In that case the Supreme Court has had to do linguistic somersaults to find a way for this mentally disabled person to avoid it.So I very much support the repeal of this unjust legislation which absolutely trammels not only on the rights of offenders to be dealt with in a way which isn't cruel and degrading but also on the rights of victims to make sure that offenders are sentenced appropriately and fairly and in a way which takes into account all the circumstances. I'll close on this: if we are dealing with the worst of the worst—terms I see used all of the time on the other side of the House—then let's look at the principle in section 8(c) of the Sentencing Act which says that the court "must"—not "may" but "must"—"impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases". So we've got it there already. We don't need the three strikes. We've got a robust Sentencing Act and it will be a damn sight better when we strip out these offensive provisions. I commend the bill to the House."