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That High Court judge, translated: ‘This three-strikes law is batshit crazy’

Faced with an absurdly rigid obligation to issue a prison sentence for a relatively minor offence, Justice Toogood deployed every drop of discretion available, writes Andrew Geddis

New Zealand has had a “three strikes” sentencing regime in place for some six years now. At the time of its introduction, it was sold as a measure to protect New Zealanders from “the worst of the worst” by locking them away in jail to prevent their repeated offending creating more victims. Names like William Bell and Graeme Burton were thrown around, despite the fact that the policy actually wouldn’t have stopped their murderous actions.

This policy was pretty controversial when introduced. Its effectiveness in preventing crime since then is the subject of some debate (and I really urge people to read AUT Law Professor Warren Brookbanks’ excellent Greg King Memorial Lecture Paper here). What was known at the time, however, was that the law inevitably would result in outcomes that defy common sense understandings of justice. Here’s Professor Brookbanks and his colleague Richard Ekins writing at the time it was being considered:

[Three strikes policy] departs from the central principle of just sentencing, which is proportionate response to wrongdoing. The ‘three strikes’ regime, to some extent on strike two and especially on strike three, ignores the nature of offences, which include conduct that ranges from the relatively minor to the very serious. The regime ignores almost all the aggravating and mitigating factors relevant to assessing the relative gravity of a criminal wrong. The application of the regime, especially at strike three, will often be unjust. Specifically, the regime will often impose grossly disproportionate punishments on relatively minor offences. It will also fail to distinguish relatively minor and very serious offences, which is unjust to victims as well as to offenders.

Such outcomes were all too predictable because, at the risk of oversimplifying, the three strikes regime works like this. There is a set list of qualifying “strike offences”, ranging from the always serious (murder, sexual violation) to the as we’ll see sometimes fairly minor (indecent assault).

Three strikes of lightning at open sea.

A ropey visual metaphor for three strikes

If you are sentenced for one of these offences – your “first strike” – you get a warning only on top of the normal sentence for your actions. If you subsequently are sentenced for another such offence – your “second strike” – you get a final warning and must serve any jail time for your actions in full (ie you get the normal sentence for your actions, but no chance of parole where that sentence includes jail time).

If you then get a “third strike” sentence, you must be given the maximum sentence for your offending and serve it in full (ie whatever the offence, you get the longest possible jail term and no chance of parole from it). However, there is an important escape clause for second-and-third strike offences, in that if it would be “manifestly unjust” not to allow for the chance of parole, the court still can do so.

The key starting point here is that a person convicted of a third strike offence has to receive the maximum prison sentence for that offence as set down in the Crimes Act, irrespective of the nature of the offending or anything else. The potentially absurd consequences of such a rigid rule has now become all-too apparent in the first third strike case to come before a New Zealand court.

It involves one Raven Casey Campbell, a now 25-year-old man. By the age of 22, Casey had racked up two separate strike offences – robbery and aggravated robbery. He was serving a jail sentence for his second strike offence when this occurred:

A female Corrections officer was standing in a doorway supervising prisoners in the kit locker, where prisoners exchange their clothing, towels and bedding for fresh items. Standing behind the Corrections officer, [Casey] grabbed her right buttock, squeezed it quite hard, and held on for about 1 to 2 seconds.

[Casey was] told to go to the guard room but … did not make any attempt to move. When the Corrections officer went to leave the yard through a set of steel gates, [he] followed her, grabbed the gate, and asked the Corrections officer if [he] could talk to her. [Casey was] told to move [his] hand so the Corrections officer could leave and [he] did so. The Corrections officer was not injured but she suffered stress and has been off work.

The issue is that Casey’s action in pinching the officer constitutes indecent assault (as he admitted when he plead guilty to that charge). And indecent assault is one of the listed strike offences. And as this is Casey’s third strike offence, the three strikes law calls for him to be sentenced to the longest term available for such actions without any chance of parole; which for indecent assault would mean serving seven more years in prison before being released.

That’s pretty outrageous, for a bunch of reasons. First of all, it would be by far the longest prison sentence any person in New Zealand has ever served for any indecent assault ever committed. Second, it would be (as the judge noted) a sentence at least 7 times longer than he would have received under normal sentencing rules. And what is more, keeping Casey in jail won’t really protect future victims from his actions – the offence was committed in prison itself!

So applying the three strikes law would punish Mr Casey as if he has committed the worst indecent assault ever in New Zealand’s history, keeping him in a place where he could commit further such assaults, at the cost of some $700,000 of taxpayer money. Which is not exactly what the policy was sold as doing at the time of its passage through Parliament.

What, then, could the Justice Toogood do about this state of affairs? Well, under the legislation, he had literally no option but to impose the full seven-year sentence. The law allows for no discretion at all in this respect. That is not to say that he was happy to do so:

I agree that is very harsh given that what you did was not the most serious assault of its type, but Parliament has determined that your history of violent offending requires a very stern response to protect the public from you and to act as a deterrent to you and others. It may seem very surprising that this consequence could be required by law for an offence of this kind, but that is the law and I have no option but to enforce it.

A little bit of translation assistance may come in handy here. When a judge says a legislative outcome is “very surprising”, that is judicial code for “batshit crazy”. And so, when it came to the question of whether that seven-year sentence should be served without the chance of parole – an issue that judges do have discretion over under the three strikes regime – Toogood J was having none of it:

At the age of 25 you are still relatively young and you do not have a long list of previous convictions. None of your previous convictions relate to sexual offending. You pleaded guilty and I am satisfied you are genuinely remorseful. Having no prospect of parole would not encourage you to take steps to change your behaviour and to engage in rehabilitative programmes while in prison as you have said you are willing to do. In that regard, I also take the victim’s sympathetic views into account.

Having considered all of these factors, particularly the nature of the offence and your prior offending; the early plea; your remorse and insight, and your rehabilitation prospects, I have no doubt that requiring you to serve a full sentence of seven years’ imprisonment without parole would be a grossly disproportionate outcome. After you have served one third of the sentence, it will be a matter for the Parole Board to determine whether and when it is safe to release you into the community. You should be encouraged, Mr Campbell, to take part in those rehabilitation programmes. 

Consequently, Mr Campbell will have to serve a minimum of two years, four months in jail – 2.4 times longer than the maximum time he’d have spent in jail under the “normal” sentence for his offending – before he can ask for parole. And then if he is safe to be released on parole, he can be. But if not, he stays in jail for the full seven years.

Which still represents a pretty drastic overreaction to Mr Campbell’s actions, but certainly not as bad as if Toogood J had not used the small amount of discretion left to him to ameliorate the three strike law’s full effect. Meaning that the only thing that keeps the three strikes law from operating in a completely, undeniably batshit crazy way is a judge basing his decision on what he thinks justice requires in the individual case – which is exactly what the three strikes law sets out to prevent.

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