The 'absurd and disproportionate' three strikes sentencing provisions have forced judges to jail some people for much longer than they deserved, while more serious criminals walk free
Analysis: In New Zealand, there are a few strangely archaic legal provisions. The Māori Community Development Act still forbids alcohol at gatherings of Māori. The sentence for failing to file the annual accounts of an incorporated society is still just one shilling a day. And, according to constitutional lawyer Graeme Edgeler, the English Bill of Rights 1688 is still in force, which provides that Protestants may carry arms for their own defence.
But this morning, in announcing the repeal of the three strikes sentencing provisions, the Government will be striking out one of the more perverse laws on New Zealand’s statute books. And this law is not even old.
Modelled on a Californian law, New Zealand’s three strikes began as an ACT Party election platform in 2008. It was a regrettably knee-jerk response to the tragic murder of Dunedin student Sophie Elliott by her ex-boyfriend Clayton Weatherston. In the campaign, ACT lined up 77 coffin lids to represent 77 homicide victims whom it claimed would be alive if its three strikes policy had been law.
The National-ACT-Sensible Sentencing Trust Government passed it into law in 2010. It directs a judge to sentence a third-time serious offender to the maximum sentence, unless doing so would be “manifestly unjust”.
Eleven years on, Justice Minister Kris Faafoi says the three strikes regime is an anomaly in New Zealand’s justice system that dictates what sentences judges must hand down, irrespective of relevant and specific circumstances. "It has led to some absurd outcomes."
Indeed, there could be few better examples of the law of unintended consequences than this law.
Appalled at being required to impose unconscionably long jail sentences for relatively minor assaults, judges went to the other extreme – they would find third-time offenders guilty, but not convict them. No conviction, no sentence.
By 2016/17, judges had convicted and sentenced 212 offenders for their second serious offence under the new law – but hadn't convicted a single person for a third strike. That year was the first: Raven Casey Campbell, already serving a prison sentence for aggravated robbery, was convicted for grabbing the bottom of a Corrections officer.
Justice Kit Toogood had no choice but to sentence him to the maximum seven years in prison but, describing it as a “very harsh” sentence, the judge ruled it would be manifestly unjust for Campbell to serve his sentence without the possibility of parole. In almost all the subsequent third strikes – and there have been only 23 to date – the judges used that discretion to allow parole.
Just two weeks ago, a mentally ill man who had tried to kiss a woman on the street was allowed out of jail after his seven-year third strike jail term was belatedly overturned by the Supreme Court. The three strikes regime did not apply if the result was a sentence that was so disproportionately severe that it breached the Bill of Rights Act, the court ruled.
Daniel Clinton Fitzgerald, 48, had served five years under the three strikes law; a court subsequently ruled he should have only been sentenced to six months under ordinary sentencing principles.
"The Supreme Court had to intervene in the case of an individual with long-standing and serious mental illness to correct what the Court said was so disproportionately severe that it breached the Bill of Rights," Faafoi says.
“Those who backed the law argued it would improve public safety – it has not. The evidence remains overwhelming that there has been no effect on violent crime rates since its implementation in 2010."
"Rather than contorting themselves at great and tedious length to condemn three strikes, the judges would surely have been much better to highlight the fact that it is a lack of alternative facilities for men like Fitzgerald which is the problem, and not the three strikes law itself." – David Garrett, former Act MP
If one wanted any confirmation that it was a deeply flawed law, one need look only to the musings of its architect, disgraced former ACT MP and Sensible Sentencing Trust lawyer David Garrett. Just last month, he admitted in a Kiwiblog post that the inclusion of indecent assault (the offence of which both Campbell and Fitzgerald were convicted) had given rise to unintended results and should be removed from the list of 40 strike offences.
He broadly defended his three strikes law, but said he'd been rightly warned that it would encompass a huge range of conduct – "everything from an unwanted pat on the arse to something just short of sexual violation".
"Rather than contorting themselves at great and tedious length to condemn three strikes, the judges would surely have been much better to highlight the fact that it is a lack of alternative facilities for men like Fitzgerald which is the problem, and not the three strikes law itself."
(Garrett himself resigned from Parliament in 2010 after failing to disclose he had used the identity of a deceased child to obtain a passport in 1984, and had been convicted of assault in Tonga in 2002.)
Labour tried to repeal the three strikes law during its last term in Parliament but was blocked by coalition partner NZ First. Today, Justice Minister Kris Faafoi has announced its repeal.
It simply hasn’t delivered what its ACT and National architects promised, he says, and so Labour had committed to repeal it: “To get rid of a regime that has resulted in absurd and disproportionate outcomes.”
"Judges will continue to be able to impose severe sentences on serious offenders. They will also be able to take a range of relevant factors into account and tailor the penalty to fit the crime." – Kris Faafoi
Faafoi says other sentencing options and orders exist in New Zealand law already that provide judges the tools to impose the same restrictions as provided by the three strikes law, in appropriate cases. He gives the example of preventive detention for repeat serious offenders, public protection and extended supervision orders, minimum periods of imprisonment, and imposing maximum penalties, up to life imprisonment.
"Judges will continue to be able to impose severe sentences on serious offenders," he says. "They will also be able to take a range of relevant factors into account and tailor the penalty to fit the crime."
Once the law is repealed, judges won't be forced to apply sentences that they see as disproportionate and unjust – but as the repeal bill stands, those offenders already sentenced under the three strikes regime will still be required to serve their sentence as originally imposed. That is a matter for the select committee.
The arbitrary character of sentencing laws like the three strikes provisions were highlighted in a 2019 report from the Safe and Effective Justice Advisory Group, Te Uepū Hāpai i te Ora. Decades of institutional discrimination by police, prosecutions and the courts have created inter-generational inequities and a criminal justice that funnels Māori children, in particular, through state care, youth justice and into adult offending and the prisons.
Te Uepū was chaired by former police officer and National MP Chester Borrows, who was Minister of Courts from 2011 to 2014. Ahead of the report's publication, he told Newsroom that he regretted not taking a stronger stand on the issues he didn’t believe in, including three strikes legislation and removing prisoners’ right to vote.
Sadly, there has been little material change to come out of Te Uepū's consultations and work, seemingly sidelined by Covid and the increasingly vexed challenges of political management.
But this repeal is one good step towards genuinely sensible sentencing.
