When introduced to parliament earlier this year, the new three strikes sentencing bill had been toned down from its earlier iteration. Now, while still at select committee stage, it’s getting a tough-on-crime revamp. What’s going on?
Three strikes, three strikes… This is the one that imposes harsher penalties for repeat violent and sexual offences, right?
Correct – a first conviction results in a warning and standard sentence, a second conviction gets a final warning and a standard sentence without parole, and for a third, the maximum sentence is imposed, with no parole (except when this would be “manifestly unjust”). Introduced by the National government in 2010 and covering 40 offences, it was repealed by Labour in 2022 after resulting in a number of unduly severe sentences that were appealed, and hundreds of thousands of dollars of compensation being awarded.
But the new government brought it back?
Yes, the coalition made good on campaign promises by all three parties and introduced a revised version of the law in June this year, amended from the earlier iteration to make it more “workable”. A new threshold of a 24-month jail sentence was brought in, the “manifestly unjust” clause extended, and limited benefit for guilty pleas added.
Tell me more about this ‘manifestly unjust’ business.
The original law allowed for judges to depart from the third-strike-no-parole rule when they considered it would be “manifestly unjust” to withhold parole (they still had to impose the maximum sentence). Designed to be used only on rare occasions, the clause was in fact invoked for 21 out of 26 third-strike sentencings. The new bill makes the clause more applicable and includes sentencing guidelines, meaning decisions are less likely to be dragged through the courts.
Gotcha. But now it’s being changed again?
Yep. The bill passed its first reading and was sent to select committee on June 25, with submissions closing a month later. The committee’s report was due back on November 1, but that’s now been extended to December 5. That’s the stage at which amendments would usually be suggested, but yesterday associate justice minister Nicole McKee announced that cabinet was “listening to New Zealanders” and would be recommending modifications to “toughen” the bill. Namely, reducing the sentence threshold to 12 months for the first strike, and reactivating warnings from the previous three strikes regime if they met this 12-month threshold.
Is it all good to make these changes now, rather than wait for the select committee’s report?
Labour doesn’t think so, describing the move as “appalling process”. Said justice spokesperson Duncan Webb in a press release: “The fact Minister Nicole McKee is jumping the gun and making these changes shows she is not interested in evidence or good process. The proper process to have input is through the select committee, not a selection of private emails to the minister.”
Given that select committees are dominated by MPs from the governing parties, the Justice Committee quite possibly would have recommended these amendments anyway, so the timing is quite likely to be an optics decision: the government wants to show it’s cracking down in the face of violent crime stats that are trending in the wrong direction.
Back to McKee’s ‘listening to New Zealanders’ line. Who is it they’re listening to?
In her press release announcing the amendments, McKee referenced select committee submitters, but later also pointed to “a large number of emails that I’ve received in my office”, which “said that we did not go far enough” (this is what Webb’s comment above was referring to).
I can’t speak to the contents of McKee’s inbox, but there are 763 public submissions on the bill on the parliament website. According to Webb’s press release, “released submissions so far show overwhelming opposition to the bill”. According to McKee in parliament yesterday, they show an “overwhelming majority of support for what the government is trying to do here”.
Hmm. Who’s right?
Having not read all 763 submissions, I wouldn’t want to hazard a guess. But groups that submitted in opposition to the bill include the New Zealand Law Society, the Law Association, the Criminal Bar Association, staff members of Victoria University’s Institute of Criminology, the Royal Australian and New Zealand College of Psychiatrists, Mana Mokopuna – Children and Young People’s Commission, and the Human Rights Commission. Their reasons for opposing the bill include a lack of evidence it would reduce violent crime, the risk of disproportionately harsh sentences and the likelihood it would disproportionately impact groups such as Māori and those living with mental health issues.
These concerns largely mirror those of Ministry of Justice officials, who advised against the reintroduction of a three strikes sentencing regime in a regulatory impact statement in April. If the government decided to press on (which both coalition agreements stipulated), officials recommended a sentence threshold of at least 24 months be applied and “strongly advised against retrospectivity or incorporating strikes from the previous regime”, as this would “contravene a fundamental justice right only to be subject to penalties that were in place at the time of the relevant offending”.
On the other side, the Sensible Sentencing Trust ran a campaign urging its supporters to submit on the bill, setting up a “Stop the Three Strikes sellout” website with a pre-written submission that railed against any sentence threshold and the bill not being retrospective. Many of the submissions on the parliament website appear to have used this template, which includes the line “Watering down Three Strikes is not what I voted for!”
The Sensible Sentencing Trust will be pleased with the changes announced yesterday, then?
Fraid not. This “weak compromise” marked “a triumph of public service bureaucrats over evidence-based policy”, said trust spokesperson and former Act MP Stephen Franks in a press release. (It’s not clear what evidence he’s referring to, given there is none to suggest the first iteration of three strikes worked.) Even with the new lower first strike threshold, less than a third of the old regime’s “third strikers” would be captured by the new law, he said.
Is that right?
It’s true that even with the “toughening” announced yesterday, “the new iteration of the three strikes regime remains less encompassing than the previous one”, said law professor Andrew Geddis. “Under the old three strikes regime, any conviction for a qualifying offence resulted in a ‘first strike’ warning. Now, only convictions for a qualifying offence that attracts a sentence of at least one year imprisonment qualify. As such, while the announced changes do mean more such warnings will be given than was the case under the original bill, there still will be fewer than under the old law.”
Any other concerns with the changes?
Geddis identified an issue: the fact that sentences of two years or less in prison can be converted to home detention, while sentences of more than two years can’t. “This fact will create differential consequences under the three strikes regime based on factors that have nothing to do with the offending in question,” he said.
“For example, you could have two offenders who commit the same qualifying offence and receive the same ‘starting point’ sentence of 18 months’ imprisonment. One then has an address suitable for home detention, so their sentence is converted to a nine-month home detention sentence. They therefore do not receive a first warning under the three strikes regime. The other does not have such a suitable address, and so is sentenced to prison. They then must receive a first warning under the regime. Same offending, same ‘danger’, but different results.”
I see. So is there anyone out there pleased with the amendments?