Derek Cheng takes a deep dive into Three Strikes, its impact on public safety, why the courts tempered it, and how a minister’s words were used to justify softer sentences.
When Three Strikes was passed into law in 2010, it was hard to object to harsher sentences for those who repeatedly committed serious violent crimes.
One way it was meant to increase public safety was that, for those offenders, more time behind bars meant less time on the streets. Another was deterrence: offenders were warned at each strike that continuing to offend would lead to longer sentences without parole.
But the Government repealed the hardline policy last year, saying the tools for severe sentences were already in place, and the law had only forced judges to impose unjust punishments.
The door has not closed on Three Strikes, however. It would be revived in a future National-Act Government, so it’s timely to look at its evolution and impact, including what a future Three Strikes might look like.
The main issue was defining what constituted serious recidivist offending. Groping a stranger on the street is unquestionably abhorrent behaviour, especially if you’d already done it twice before - but so abhorrent that it deserves seven years’ jail with no parole?
Proponents framed the law as applying only to the most serious crimes, but the “manifestly unjust” wriggle room was also an admission that there was a grey area, that the law might end up capturing the not-so-most-serious.
It was left to the courts to decide where to draw the “manifestly unjust” line. This is how the judiciary, looking at the words of Judith Collins in particular, curbed the extremes of Three Strikes, while also broadening judicial discretion into parts of the law where it was completely absent.
Passed in 2010, the Sentencing and Parole Reform Act meant that 40 offences qualified as so-called strike offences, including all major sexual and violent crimes with a maximum penalty of at least seven years.
A judge had to give a warning and standard sentence for strike one, a sentence without parole and a second warning for strike two, and the maximum sentence without parole for a strike-three crime.
The minister in charge of the bill, as Corrections Minister, was Collins. In what would prove to be portentous words, she said at the bill’s third reading: “The community expects and rightly deserves to be protected from those serious violent offenders for a lengthy period ... Parole is a privilege that will not be available to those who fail to take heed of warnings and continue to commit serious violent offences.”
Judges were allowed to invoke a “manifestly unjust” clause, but only for a third strike and only to allow for parole; they still had to impose the maximum sentence for that crime. The clause, then-Justice Minister Simon Power said at the time, should only be used on rare occasions, such as when an offender had an intellectual impairment.
Opponents decried the law as requiring unjust prison sentences while having a disproportionate effect on Māori - both of which were foreseen in Ministry of Justice advice at the time.
The ministry also said the impact on public safety was impossible to know with any certainty - though this related to an early version of the bill, where a sentence of at least five years’ jail qualified as one strike. Changing this to one of 40 offences, police advice noted, would cast the Three Strikes net much wider, including the possibility of capturing “relatively minor crimes”.
This was further indicated in the police estimate of how the change, which was approved, would increase the number of additional prison beds in the law’s first 50 years. This jumped dramatically from 132 to 700 beds.
By the time the law was repealed last year, about 13,400 people had been convicted of a first strike offence - half of them Māori. Almost 744 people were on strike two, and 26 criminals had three strikes to their names.
Far from used sparingly, judges had invoked the “manifestly unjust” clause in 21 out of the 26 third-strike sentences, deciding that no possibility of parole would be too unfair.
“Judges are often uncomfortable with the effects of the regime, and have frequently sought to avoid applying the regime to its full extent by means of liberal application of the manifest injustice exception,” writes Xu Wang in his 2021 master’s thesis Three Strikes Sentencing in New Zealand.
In repealing the law last year, Justice Minister Kiri Allan said there was “little evidence” Three Strikes had deterred or prevented serious crime. Without it, she said, judicial discretion still allowed for the same punishments where appropriate, and in line with the Bill of Rights Act (BORA).
The Bora vetting of the bill at the time, by then-Attorney-General Chris Finlayson, was for its earlier form before the change to 40 qualifying offences. Finlayson said Three Strikes might be inconsistent with section nine, one’s right against disproportionately severe treatment. For this to happen, though, he said the sentence had to be so unjust as to breach a “very high threshold of outrageousness”.
In what would later be picked over by the judiciary, he added that a whole-life sentence for murder - which would be imposed for either strike two or strike three - was “not necessarily contrary to human rights standards”.
Though mandatory in nature, the judiciary was always going to have to grapple with what constituted “manifestly unjust”, and what sentences were so disproportionate as to breach Finlayson’s “outrageousness” threshold in the BORA.
The first person to strike out was also the first to be described as an unjust outcome. Raven Casey Campbell was given a seven-year sentence in 2016 for squeezing a prison officer’s butt cheek. The victim was angry, according to Judge Kit Toogood’s notes, but also hoped Campbell would be able to be paroled as he was young and needed help.
Toogood said he had no choice in handing down a sentence seven times longer than he otherwise would have. His was the judiciary’s first foray into the grey area; instead of zero chance of parole, he used the “manifestly unjust” discretion to allow for parole eligibility after a third of the sentence.
Around the same time, the Court of Appeal was considering the case of Shane Harrison and Justin Vance Turner - both serving life sentences for strike-two murder. They were two of five strike-two murderers at the time, the judges noted, all of whom were beneficiaries of the “manifestly unjust” discretion. The appeals were from the Crown, arguing that the discretion had been used wrongly, and Harrison and Turner both deserved harsher sentences.
The court’s decision - upholding Harrison’s sentence and making Turner’s slightly harsher - was more important for carving out what qualified as “manifestly unjust”. It referenced Finlayson’s 2009 report: that a whole-life jail term for murder wasn’t necessarily inconsistent with the BORA, but the fact it might be was the reason for the “manifestly unjust” wriggle room.
Including that discretion, the court decided, was intended to ensure that sentences did not cross the BORA line of grossly disproportionate treatment.
But the court disagreed that the clause should only be used in exceptional cases, saying it needed to be applied more often to prevent a host of lower-level Three Strikes offending - like discharging a firearm - from leading to an excessive number of BORA-breaching sentences.
The grey area, in other words, was likely to be much larger than Parliament had initially thought.
The “manifestly unjust” line was redrawn two years later in a 2018 Court of Appeal decision, which said the clause should have a much wider reach than what the wording in the law actually specified.
The law stated that the clause could be used to allow for parole in sentences for strike-three crimes and strike-two murders. But the court found that Parliament “must have intended” for the law to avoid manifestly unjust outcomes across the board, so discretion should be applicable to all strike-two sentences as well.
“We say that despite the absence of a provision making an exception for manifest injustice [for strike-two sentences],” the decision says.
How much wider this redrew the line is evident in the numbers. By the time of its repeal, the “manifestly unjust” discretion should have been applicable to 770 strike-two and strike-three sentences, rather than only 26 strike-three sentences and a handful of strike-two murder sentences.
The court had been considering the case of Matthew Barnes, who had kicked and robbed a security guard and been sentenced to two and a half years in jail; two of his accomplices had sentences with parole eligibility, but Barnes didn’t because he already had one strike on his record.
No parole for Barnes could be seen as disproportionately severe, the court said, especially in light of the non-violent nature of his first-strike crime (as an 18-year-old, he’d had a sexual relationship with his 14-year-old girlfriend). His sentence for aggravated robbery was sent back to the district court, which reduced his sentence by five months.
In the case of Daniel Clinton Fitzgerald, contravention of the BORA not only led to a reduced sentence but $450,000 in compensation. Fitzgerald was serving part of a strike-three sentence that was found to have breached the BORA in the way Finlayson had forewarned was possible.
Fitzgerald suffered from schizophrenia and had been in and out of mental health facilities at least 13 times. When sentenced in May 2018, the judge noted that his crime of indecent assault - kissing a woman and pushing another woman, both strangers, in the street - would not normally have warranted a prison sentence. He was given the mandatory seven years’ jail, but allowing for parole eligibility under the “manifestly unjust” clause.
His first and second strike offences were also indecent assaults: in 2012, he had knocked a victim to the ground and buried his face in her buttocks, and in 2015, he had slapped the buttocks of three women as they walked past.
His appeal landed in the Supreme Court in 2021. Diving into the intent of the law, the judges turned to what MPs had said during the bill’s passage through Parliament - especially Judith Collins.
The then-minister had repeatedly talked about how the law would target the “worst repeat violent and sexual offenders”, and that a strike-three sentence was meant to be very harsh “because the offender is continuing to commit very serious offences”.
By majority, the Supreme Court interpreted this as meaning that Three Strikes was only meant to apply to those who not only committed crimes of a very serious nature, but continued to do so. Echoing the Barnes judgement, the court found that the regime wasn’t meant to override the BORA protection against disproportionately severe treatment.
Justice William Young, in the only dissenting opinion, relied on the words in the law to define a “serious violent offence” as any one of the 40 qualifying crimes. Young viewed this as permitting “no judicial assessment of the actual seriousness or violence of the offending”. The punishment was therefore meant to be disproportionately severe, even if inconsistent with the BORA.
The judges by majority said that the Fitzgerald sentence went “well beyond excessive punishment and would shock the conscience of properly informed New Zealanders”. The case was returned to the High Court for sentencing, which imposed six months’ jail. Fitzgerald’s compensation was due to having already served five years of his original seven-year sentence.
Told of the case and how her words from 2010 were cited, Collins told the Herald that the court “seemed” to have come to the right conclusions.
The Fitzgerald ruling said the threshold for breaching the BORA was high, and such cases would be rare.
But it led to at least seven appeals involving crimes as serious as rape, in which the Court of Appeal replaced Ashleigh Crowley-Lewis’ nine-year non-parole sentence for his second strike with one of a similar length, but with less than half the minimum jail time.
That case set a precedent where the offender didn’t necessarily need to suffer mental health issues in order for the sentence to be considered disproportionately severe. This was distinct to the case of Conrad Sheers, for example, whose third-strike 14-year prison sentence for aggravated robbery was cut to three years because he’d suffered foetal alcohol spectrum disorder.
In the case of Wiremu Allen, the Court of Appeal decided the third-strike sentence of seven years in prison didn’t contravene the BORA as it was for “very serious” offending; he had been party to the shooting of a person during an armed home invasion.
In a 2021 decision, the Court of Appeal saw the chances for rehabilitation, or the lack of any, as a key factor in softening Billy Matara’s strike-two sentence of 10 years and two months’ jail for attempted murder. In allowing for parole eligibility, the court said the initial sentence might have placed him behind bars even if he was no longer a risk to public safety.
Other appeals were for offending of a far less serious nature. Jamie Love, who had demanded money from a person he sat next to in a gaming lounge and was then given $60, had his strike-three 10-year sentence for robbery cut to 18 months’ jail.
Love’s case leaned in part on Kirihi Bob Phillips’ reduced sentence. Phillips had a first strike for squeezing a woman’s buttocks, and a second strike when he was part of a group attack and robbery on two men. His third strike was for indecent assault. He had rubbed the hand, arm and back of a woman staying in a hostel.
The Court of Appeal measured the severity of his offending against what Judith Collins had said in 2010, this time during the bill’s committee stage.
The court ruled that Phillips was “an inadvertent and unforeseen casualty of the three strikes regime” because his crimes weren’t serious enough to fit with what the regime was meant to capture. His seven-year sentence was cut to 15 months’ jail.
And then there was the case of Tauhu David Mitai-Ngatai, whose seven-year jail sentence for a third-strike indecent assault was quashed and replaced with a two-year sentence.
He’d intimidated a sales manager in a shopping mall and then grabbed her buttocks. Indecent assault had also been his crimes for strike one and strike two, one of which was against a female under 12, a friend of his daughter’s.
The Court of Appeal, again referencing Judith Collins’ words from more than a decade earlier, said the level of offending was more serious than in other appeals. A factor in its decision to truncate his sentence was the fact that the Crown had no objection to the sentence being greatly shortened.
This was not an unusual position, according to Wang’s Three Strikes thesis, which found that “prosecution lawyers have in many cases conceded that application of the full extent of the regime would result in unjust outcomes”.
The law was repealed just as the case law was evolving to clarify how cases at the lower end of repeat offending should be dealt with.
The Cabinet paper to repeal Three Strikes provided a snapshot, in the latter half of 2020, of those in prison at the time.
Of the 220 strike-two prisoners, 17 were serving a sentence of at least 10 years in prison, 59 had sentences between five and 10 years, and the rest had sentences of five years or less.
Among those serving at least a two-year sentence, robbery/aggravated robbery was the most prevalent crime (33 per cent), followed by wounding/injuring (32 per cent), and sexual offences (20 per cent).
For the 18 offenders at the time with three strikes on their record, 81 per cent were Māori. The most common offences were the same: robbery/aggravated robbery, wounding/injuring - which was the most prevalent crime among this cohort - and sexual offences.
Slightly more than a third of them had more than 15 previous convictions, while eight out of the 18 had been in jail more than 10 times before.
In deciding to repeal Three Strikes, Cabinet noted a Ministry of Justice report from December 2018 that considered its impact. It found:
The Cabinet paper said: “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.”
“No evidence”, the National Party points out, doesn’t necessarily mean it had no impact, or didn’t improve public safety.
The Cabinet paper did not note that the ministry’s 2018 report, on its own assessment, was inconclusive.
“Observations of crimes targeted by the law do not appear to demonstrate any obvious effects,” the 2018 report said, adding that further research would be needed to make any firm conclusions. It noted, however, that there had been a drop in second-strike offences since the law had been implemented.
More recent advice from the ministry, in its regulatory impact statement for the bill repealing the law, noted a 2006 paper that questioned any deterrence effect. It found that the severity of punishment has “essentially no deterrent effect”, while the certainty of being caught had a small effect - mostly for white-collar offences such as fraud.
“Even if someone did consider the consequences of their potential offending, most people are unlikely to understand what constitutes a ‘strikable’ offence and therefore whether the regime will apply to them,” the RIS says.
In arguing the case for repeal, the ministry noted the sentences that contravened the BORA and the disproportionate effect on Māori.
“Over 2018/19 and 2019/20 combined, Māori were almost nine times more likely to receive a first strike than those of Europeans/other ethnicity and over 18 times more likely to receive a second strike,” the RIA said.
At June 2020, 50 per cent of first strikers and 63 per cent of second strikers were Māori, compared to Māori making up about 52 per cent of all prisoners at the time.
In repealing the law, the ministry estimates that 75 to 90 prison places will be empty by 2025 that would otherwise have been taken. The figure for 2032 is between 140 and 180 places. The ministry’s RIA says the “cost of a prison place” is $12,000 a year, meaning there would be up to $2m in savings by 2032.
The ministry’s previous cost estimate, from 2018, says the price of Three Strikes (or the savings from its repeal) would be much higher if it required building more prison beds, which is when the average annual cost of housing a prisoner - $150,000 - is more relevant.
This doesn’t appear to be a factor at the moment, given the prison population has come down by about 2000 prisoners since the early 2020 peak - but it could be if the law makes a comeback.
The National Party’s law and order policy confirming its support for Three Strikes included a wish for clearer guidelines for judges about the “manifestly unjust” discretion.
The party’s justice spokesman Paul Goldsmith told the Herald the new law should also be able to take early guilty pleas into account, given that the regime incentivised “not guilty” pleas, which led to retraumatising victims who gave evidence at trial.
Deterrence was not the main point of Three Strikes, Goldsmith added, which was to keep to worst repeat offenders off the streets for longer.
Whether this would make the public safer, as the Ministry of Justice first pointed out in 2009, is impossible to know with any certainty. It would do so while the offenders are behind bars, but almost all of them - those who aren’t serving whole-life jail sentences - would be released eventually.
It is well established that a person is generally more likely to reoffend the longer they spend behind bars and the fewer opportunities they have - such as parole - to help re-integrate them into society.
Act leader David Seymour also wants the return of Three Strikes, but with a clearer message to prevent the “judicial activism” of recent years.
Asked about the judiciary extending the “manifestly unjust” discretion to second-strike sentences, he said: “They seem to be taking a bit of advice from the lawyers in The Castle, where they’re taking the vibe of the thing,” a reference to the Australian comedy movie with an incompetent lawyer.
He said Three Strikes was meant to fill the chasm between what the general public and the judiciary considered to be the right kind of sentence for recidivist offenders. The fact that the “manifestly unjust” clause had been used in 21 out of 26 strike-three sentences suggested it had been used too liberally.
“It’s their [the judiciary’s] sense of proportional punishment that’s at fault. That’s why Parliament passed the law in the first place.”
But Seymour said the “manifestly unjust” clause was there in case there were scenarios like a low-level indecent assault at strike three, which would otherwise lead to a seven-year non-parole sentence.
He added it might be possible to explain the high proportion of strike-three sentences that had been reduced; “relatively minor transgressions” might be more common in the early years because the more hardened “strike” criminals were still in jail serving lengthier strike-two sentences.
National and Act are also not oblivious to the likelihood that, as the election looms with law and order high on the agenda, Three Strikes also has the ability to strike a chord.
A 2018 poll commissioned by the Sensible Sentencing Trust found 68 per cent approved of Three Strikes, while only 20 per cent did not. Support was surprisingly high among Green voters (48 per cent) and Labour voters (63 per cent).
National and Act have repeatedly called the Government “soft on crime”, which in turn has seen them being accused of empty, populist rhetoric.
Regardless of whether a return of Three Strikes is a deliberate appeal to populism, the regime certainly doesn’t seem to be lacking in popularity.
Derek Cheng is a senior journalist who first started at the Herald in 2004. He has worked several stints in the press gallery and is a former deputy political editor.
NZ First minister Shane Jones loses a tooth while giving a speech in the House at Parliament this week. Video / Parliament TV