Government toughens Three Strikes 2.0, likely to include thousands more after public sentiment it was too soft

Cabinet has agreed to changes to Three Strikes 2.0 to make it significantly tougher, though still weeding out low-level crimes. Photo / 123rf

• The Government announced the details for Three Strikes 2.0 earlier this year. It was not nearly as tough as the first iteration, which saw many legal challenges and, according to officials, had “no significant quantifiable benefits”.
• Cabinet has now agreed to make 2.0 tougher, including making it retrospective and halving the threshold for a first strike. This is likely to capture thousands more first-strikers.
• Associate Justice Minister Nicole McKee said the changes were a response to public submissions saying her initial proposals were too soft

Several thousands more offenders are likely to be captured under Three Strikes 2.0, following substantive changes by Cabinet to toughen up the new regime.

Those changes, announced this morning, include halving the sentencing threshold for a first strike, and making it retrospective, which would capture several thousands of the 15,000-odd offenders with strikes to their name under Three Strikes 1.0.

Associate Justice Minister Nicole McKee said the changes were in response to public feedback saying her initial proposals were too soft, though they’re likely to irk the legal community as making it retrospective raises new tensions with the Bill of Rights Act [Bora].

It’s the latest change to a controversial law aimed at the worst violent and sexual offenders, imposing on them ever-harsher sentences for repeated convictions for certain qualifying offences. Strike one would mean a normal sentence and a warning, strike two would mean serving the full sentence with no parole, and strike three would mean serving the maximum sentence for the offence with no parole.

It was introduced in 2010 under National (supported by Act), repealed in 2022 under Labour, and promised to be brought back under the Coalition Government. The first iteration was popular with voters, but had no “significant quantifiable benefits”, according to officials.

“It is not clear that the Three Strikes law has increased public or victim safety, and there is no evidence that continuing to limit judicial discretion and availability of rehabilitative opportunities in these cases will aid in reforming offenders or reducing serious crime,” officials said.

It was also dragged through the courts because some of the mandatory sentences were deemed so unfair, they violated the Bora and resulted in hundreds of thousands of dollars in compensation awarded.

Cabinet released details of the new version — Three Strikes 2.0 — earlier this year, which was significantly softened in ways that would make it less likely to face court action:

• A new strike threshold of a 24-month jail sentence would mean low-level crimes wouldn’t be captured
• Judges could eschew the mandatory aspects of the regime under the “manifestly unjust” clause, which was much more applicable than in Three Strikes 1.0
• Sentencing guidelines were added, saying disproportionate sentences were allowed but not grossly disproportionate ones

Associate Justice Minister Nicole McKee in April, announcing the Government would bring back the Three Strikes law. Photo / Mark Mitchell

Modelling showed a 24-month sentencing threshold would have roughly halved the number of first strikers in version 1.0, if it had been in place then.

The new version was estimated to increase the prison population by between 33 to 89 individuals, at a cost of $4 million to $10.7m a year after 10 years.

‘We think this is fair’ — Cabinet’s changes

McKee announced this morning the sentencing threshold for a first strike would be cut to 12 months’ jail. It would remain at 24 months for strikes two and three.

“As a result, more offenders will face stiffer penalties if they go on to commit serious crimes,” she said.

She would not share the modelling numbers for how many more first strikers this would capture, nor the estimated additions to the prison population, saying she had to go through the Cabinet process.

Asked if the extra prisoners would mean a significantly bigger hit to the Government’s books, McKee said: “What we need to weigh up is whether or not the financial implication is going to be cross-referenced against what we save in victimisations”.

The regime would also be retrospective, capturing all the strike convictions in the old regime that would count in the new one.

This is despite officials warning this would “contravene a fundamental justice right only to be subject to penalties that were in place at the time of the relevant offending (Bora section 26)”.

McKee disagreed.

“I don’t think that it will [contravene the Bora]. The violations that have been committed are against the victims of our communities, and they are the ones that we’re going to protect.

“Otherwise you have some people who could still go on to commit serious violent or sexual crime, and start again from scratch. So, we think [making it retrospective is] fair.”

Officials also said making the new regime retrospective would mean “poor workability as it will be costly and complicated to implement”. This probably refers to officials having to go through the sentencing notes of 15,000 strike convictions and pulling out the ones that would have counted under the new regime.

‘Nearly all the emails I’ve received’

McKee said the changes were a response “not only select committee submissions but a large number of emails that I’ve received in my office”.

“Nearly all the emails I’ve received have said that we did not go far enough.”

Asked whether giving the public what they wanted amounted to mob justice, as retired District Court Judge David Harvey has suggested, McKee said judicial discretion remained; the “manifestly unjust” clause was still applicable to the sentencing and parole aspects of strikes two and three.

Version 2.0 would also be less likely to see legal appeals due to the addition of sentencing guidelines that would prevent grossly disproportionate sentences.

The bill to enable version 2.0 is currently before select committee, but submissions closed four months ago.

McKee said it was up to the committee to re-open submissions, though this seemed unlikely given it is due to report the bill back to Parliament at the start of December.

“It comes down to the Justice Select Committee and what they want to do. I don’t want to interfere with that, apart from making the regime tougher, as the people have asked us to do.”

Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.