Justice ministry slams three strikes changes

Justice Minister Simon Power. Photo / Mark Mitchell

The Justice Ministry warned the Government against changing its three strikes violent crime policy saying it risked breaching New Zealand's Bill of Rights and international obligations, went against the Government's own policy on the drivers of crime and impacted on judicial powers.

It also said some juries might not convict criminals, concerned by the unfair consequences if they did, and that the group worst affected would be Maori.

The Government announced in January that it was amending its own three strikes policy after negotiations with the Act Party. The amended policy is included in the Sentencing and Parole Reform Bill and responsibility for it shifted from Justice Minister Simon Power to Police Minister Judith Collins.

If passed into law, someone committing a major violent or sexual offence would receive a standard sentence and warning for the first offence, and a jail term, in most cases, with no parole and a further warning for a second offence. On conviction for a third offence, the person would receive the maximum penalty in prison for that offence with no parole.

Under the National Party policy a strike offence was a violent crime that attracted a minimum five years jail but under the changes the threshold is conviction of a qualifying offence, for which there is a list. The previous policy would have seen an offender on his third strike jailed for life without parole for 25 years, but under the new policy the offender gets the maximum sentence for that crime with no parole.

In papers released to NZPA under the Official Information Act the Justice Ministry warns against the changes.

A November memo on police and prosecutorial discretion said a conviction for one of the strike offences would interfere with the balance between prosecution and judicial discretion.

It said basing a strike on a qualifying sentence was the most accurate indicator of seriousness and culpability, but under the ACT-National model those charging and prosecuting would have greater power.

"Having a qualifying sentence maintains the judiciary's role in determining sentence. If an offender qualifies on conviction alone, charging and prosecution practice will assume primary importance in determining an offender's sentence."

Using the conviction threshold, someone could face a third strike when he or she would otherwise have got a short or even community based sentence.

The memo said the only safeguard would be the judge's or jury's ability to acquit; " ...which may, especially with juries, be influenced by the potential consequences."

Another consequence would be to discourage guilty pleas which would result in more trials.

In December officials provided a briefing paper for Mr Power, raising human rights concerns.

"Removing the five year sentence threshold greatly exacerbates the risk of disparities amounting to disproportionately severe treatment in terms of ... the New Zealand Bill of Rights Act 1990. The risk is only partially mitigated by replacing the stage three life sentence with the maximum penalty for the offence without parole."

The memo also said some offenders would serve sentences 10 or more times longer than they would have otherwise. Some offenders would get far longer jail sentences than others who committed worse crimes but had not been caught for other strike offences.

The Ministry of Foreign Affairs had confirmed the policy increased the risk of violating international obligations not to arbitrarily deprive individuals of their liberty and not to employ cruel, inhuman or degrading treatment or punishment, the paper said.

Another concern raised by Justice officials was the regime would see more people in jail for longer when New Zealand had one of the highest imprisonment rates in the world. In 2007-08 the rate was 186 per 100,000 which was higher than several developed countries including Australia and England.

"The revised policy can only exacerbate this."

The policy was inconsistent with a ministerial direction to reduce costs in the criminal justice system and also did not align with the Government's policy on the drivers of crime.

"The conviction-only based approach increases the impact on Maori,' the paper said.

"Once in the criminal justice system Maori tend to re-offend, be reconvicted and re-sentenced more quickly and frequently than Europeans on a population basis."

The papers also showed that different models of the policy were considered and at one point work was done on bringing in serious drug offences.

Last week the Government was quizzed over why Ms Collins had responsibility for the bill rather than Mr Power.

Mr Power told Parliament that as laying the charge by police was critical to how the new bill operated it made sense for the police minister to take charge of it.

He said he supported the bill which would be reported back to Parliament on March 30.

- NZPA