Three Strikes 2.0 is set to have its first reading this week, following a strong rebuke from the Justice Ministry that favoured the status quo over a policy it said had no quantifiable benefits. Photo / 123rf
Three Strikes 2.0 is set to have its first reading this week, following a strong rebuke from the Justice Ministry that favoured the status quo over a policy it said had no quantifiable benefits. Photo / 123rf
This is unlikely to happen with Threes Strikes 2.0, where judges will have the discretion to hand down less than the maximum sentence at strike three (except for murder), and grant parole at both strike two and strike three, if it would be “manifestly unjust” not to do so.
This doesn’t mean harsher sentences won’t be given for repeat serious offenders, but how often they will be used may depend on the impact of sentencing guidelines accompanying the new law. These say disproportionate sentences are fine but grossly disproportionate ones are not as they violate the Bill of Rights Act.
Justice officials delivered a scathing assessment of Three Strikes, saying it will cost millions of dollars with no “significant quantifiable benefits”, while challenging claims often used by Prime Minister Christopher Luxon about crime being out of control, and people being locked up for longer improving public safety
The original law put a seriousstraitjacket on judicial discretion by requiring judges to impose certain sentences for specific offences regardless of the severity of the offending: a first strike led to a normal sentence and a warning, a second strike led to a normal sentence but no parole, and a third one led to the maximum sentence with no parole.
Under the proposal for Three Strikes 2.0, judges would be able to use the clause not only at strike two and three for parole, but also for the sentence length at strike three if the maximum sentence was deemed too unfair in the circumstances.
That essentially allows a judge to impose a sentence as if Three Strikes didn’t exist, the only difference being that the offender would have a further strike and warning to their name.
Low-level crime will also be exempt because a strike won’t be triggered unless the sentence for the crime is at least 24 months in prison. This would have halved the number of first strikers (from 14,687 to 7464 offenders) had it been in place for the original law.
These differences will protect against what was already happening under the first version of the law, where a number of sentences were being overturned following a long appeals process through the courts, which also exposed the Crown to compensation costs.
There was the case of Daniel Fitzgerald, for example, whose sentence was reduced from seven years’ to six months’ jail, He had already been in prison for five years for a strike-three offence of indecent assault (he had kissed a woman and pushed another woman in the street).
He was paid $450,000 for the excessive time he’d already served, after the Supreme Court said his original sentence went “well beyond excessive punishment and would shock the conscience of properly informed New Zealanders”.
Three Strikes targets repeat serious and violent offenders by requiring judges to hand down harsh sentences unless they would be "manifestly unjust". Photo / Brett Phibbs
In a regulatory impact statement (RIS), Ministry of Justice officials said allowing judges greater use of the “manifestly unjust” clause would “make the regime more coherent and give a ‘safety valve’ for dealing with outlier cases [for example, severe mental health issues, disability, a minor role where the offending was part of a group activity] at each stage of the process”; Fitzgerald, for example, suffered from schizophrenia.
“It may also lessen the disproportionate impact on Māori through increasing judicial discretion to consider individual circumstances.”
The report also recommended a set of principles for invoking the clause. These are outlined in the Three Strikes bill, and say a disproportionate sentence might be fine but a grossly disproportionate sentence is a step too far, given the Bill of Rights protection against severely disproportionate punishment. This was essentially where the judiciary drew the line for Three Strikes 1.0.
Other guidelines say the clause cannot be invoked simply because there are mitigating factors, as outlined in the Sentencing Act. The court must also give due consideration to denouncing the offender’s conduct, deterring the offender or other persons from committing the same or a similar offence, and protecting the community.
No quantifiable benefit – officials
The RIS is scathing of the Three Strikes law, which resulted in “severely disproportionate sentences”, with “limited evidence that it reduced serious crime”.
Judicial discretion was better than mandatory sentences, the report said, because it allowed for the circumstances of each case to be taken into account, while the current settings allowed for Three Strikes-like sentences where appropriate.
The RIS said the status quo wasn’t perfect, but Three Strikes did nothing to improve it.
“On every measure, the reintroduction of three strikes will exacerbate existing issues including the over-representation of Māori, Pasifika, and young offenders in the justice system.”
Given Three Strikes 2.0 was on the Government’s agenda, officials said it could be improved with a strike threshold of a two-year sentence and a wider application of the “manifestly unjust” clause. Previous strikes from the original law should not count in version 2.0.
Other new provisions include allowing for a discounted sentence for an early guilty plea at strike three. Cabinet agreed that this should be capped at 20%, less than the standard maximum discount of 25% for an early guilty plea.
There should also be a life sentence for murder with a minimum period of imprisonment, rising with each new strike (17 years at strike two and 20 years at strike three, with up to a two-year reduction for a guilty plea), though these would each be subject to the “manifestly unjust” clause.
Modelling indicates that Three Strikes 2.0 would increase the prison population by 33 to 89 individuals at a cost of $4 million to $10.7m a year after 10 years. Reinstating the previous regime was estimated to cost more, with 74 to 140 additional prison places after 10 years.
As for a cost-benefit analysis, officials said “we have not been able to identify significant quantifiable benefits”.
Justice Minister Paul Goldsmith says he disagrees with Justice officials' assessment and Three Strikes was needed for serious repeat offenders. Photo / Mark Mitchell
Officials wanted to curb Three Strikes 2.0 even further by cutting the number of offences that qualify for a strike from 40 to 33, including all those punishable by up to seven years’ jail such as indecent assault or discharging a firearm with intent to injure.
“Such sentences have been successfully appealed on rights grounds and have resulted in ongoing compensation payments, at a cost to the Crown.”
Modelling indicates that had this been in place for the original law, the number of Māori first strikers would have been 25% lower (more than 1800 people) and second strikers 42% lower (almost 200 people).
Officials also wanted minimum penalties at strikes two and three instead of a requirement for more punitive sentences.
But the Government rejected these recommendations and kept no parole at strike two, and the maximum penalty with no parole at strike three. It also added strangulation as the 41st qualifying offence.
Limited impact on reoffending, might make rehabilitation worse
Officials considered whether Three Strikes would lead to less reoffending because offenders would be off the streets and behind bars for longer than they otherwise would have been. This is similar to the claim oft-repeated by the Government that having people behind bars will improve public safety.
“We consider that any incapacitation effects are likely to be very small for second strike offenders [with no parole] because serious repeat offenders tend not to be released by the Parole Board until well after they become eligible for parole, and in many cases quite close to the end of their sentence,” the RIS said.
There was potential for more of an impact at strike three, but this would still be limited because “offenders age out of criminal activity as a decreasing proportion reoffend or are reimprisoned over time”.
The report said reoffending in some cases wouldn’t be prevented but delayed until offenders are released from prison, while others will continue to offend while in custody.
“Under the previous Three Strikes regime, approximately 25% received their third strike while imprisoned or remanded in custody.”
Prime Minister Christopher Luxon has repeatedly said that crime is out of control, but justice officials said that wasn't necessarily the case and depended on what measure you were looking at. Photo / Mark Mitchell
There was also concern over whether Three Strikes - and the provision for no parole, in particular – has a negative impact on rehabilitation; offenders serving all or most of their sentence are five times more likely to be reimprisoned within a year of release than those who served up to half their sentence [and were paroled], according to Corrections data.
“Departing from the standard sentencing and parole settings has the most significant effect on offenders who have a history of less serious offending, and those individuals who show the most progress through their rehabilitation,” the report said.
Officials also questioned whether Three Strikes would improve public confidence in the justice system, a goal that the Government wants to achieve in general.
“Public confidence in New Zealand’s justice system declined between 2003 and 2016. Meanwhile, imprisonment rates over that time increased by 25%, which includes the period during which the previous three strikes regime was in force,” the RIS said.
“The continued decline in public confidence in New Zealand’s justice system, despite increasing rates of imprisonment, suggest that harsher penalties for offences do not increase public confidence.”
Justice Minister Paul Goldsmith said this morning he disagreed with officials’ assessment.
“Fundamentally, we hold the view that there needs to be tougher consequences for our worst repeat serious offenders.”
“Evidence about whether serious violent crime is increasing is mixed, and depends on the measure,” the RIS said. “For example, regular large scale public surveys conducted by the Ministry of Justice show that overall serious crime has not increased since pre-Covid levels.”
Ministry of Justice officials say there was no consistent pattern to crime following Three Strikes 1.0, which came into force in 2010
The RIS noted public support for Three Strikes but added that the public’s view on crime rates might not align with the data. “For example, even when there have been sustained drops in offending on a variety of measures, this tends not to be reflected in surveys about how safe people feel in their communities.”
There were mixed reviews of Three Strikes regimes overseas, while in New Zealand, there was “no consistent pattern to changing crime rates before and after” the law was introduced in 2010.
“Recorded sexual offending had increased significantly; recorded serious assaults continued dropping until 2013 then steadily increased, while robbery offences steadily dropped since 2006.
“On rates of reoffending, there was an approximately 1.4 percentage point reduction in the rate at which offenders progress from a first to a second strike, suggesting a possible small deterrent effect.”
But the RIS also noted meta-analyses showing minimal deterrence from ramping up the punishment.
”Other research has shown perceived certainty of apprehension was most consistent with deterring white-collar offences, such as fraud and tax violations [rather than violent offending].”
Justice officials noted a limited impact on reoffending from Three Strikes keeping offenders in prison for longer. Photo / 123rf
Worse outcomes for Māori
The RIS said half of the first strike offenders under the original law were Māori, and of the 21 offenders who received a third strike, 81% were Māori.
“Over 2018/19 and 2019/20 combined, Māori were almost nine times more likely to receive a first strike than those of European/other ethnicity and over 18 times more likely to receive a second strike.”
Reviving the law “would exacerbate the over-representation of populations which are already disproportionately represented in the justice system”.
Government ministers have repeatedly said that Three Strikes and other law and order policies aimed at reducing the number of victims would be good for Māori because 37% of crime victims are Māori.
The RIS said: “On this basis, it could be said that any policy that takes a tougher approach to sentencing is of benefit to Māori victims, depending on their outlook. Due to limitations on consultation, we have not been able to test this hypothesis or discuss potential mitigations for the disproportionate impacts of three strikes reinstatement with Māori stakeholders.”
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.
