As the government is forced into retreat over its planned repeal of the three strikes law, it’s worth remembering just why it needs to go.
The government’s plan to repeal the three strikes law may be dead (for now), but as long as it stays on the books, the reasons for the initial impetus to repeal it will live on. Unlike California, the poster child for tough-on-crime “three strikes” legislation, we haven’t had whole decades to see instances of bewildering injustice pile up in our prisons. But over the eight years and thirteen days that our “three strikes” law has been in effect, it’s left behind plenty of examples of its fickle, uneven nature.
Probably the most well-known “three strikes” case is that of Raven Casey Campbell, the first person to be sentenced for a third strike in New Zealand. Campbell, who earned his first two strikes by committing robbery (both aggravated and not), got his third when he groped a female prison guard while serving his second sentence, an offence that constitutes indecent assault.
Under the “three strikes” law, Campbell was meant to serve a further a seven years for what he did, a sentence far out of proportion with the crime, regardless of how gross it was. (For comparison, a man who rented his year-old son out to be abused by paedophiles received eight years). The only reason he didn’t is because the judge, realising the absurdity of the situation, opted to give him parole after two years and four months, still more than twice the amount he would’ve served for that crime without the three strikes provision.
Campbell’s is probably the most glaring example of the kind of lopsided outcomes the law can potentially create. But it’s not the only one.
Take the case of Matthew Barnes, decided just three months ago in the Court of Appeal. Last year, then-22-year-old Barnes was convicted along with three others of aggravated robbery after they robbed a security guard and punched and kicked him as he lay on the ground. While two of his accomplices would be eligible for parole after less than a year, Barnes was made to serve out two years and six months without parole. Why? Because it was his second strike, which, as the original judge put it, “will send to you and others a really additional and harsh message about what these strike warnings are all about and the real consequences that they can have.”
Barnes’ first strike followed a sexual relationship he, then 18, had with his 14-year-old girlfriend. “For reasons that are still not clear to me,” the judge in the case said, “the matter came to the attention of the police and you were questioned by the police.”
Barnes was ultimately convicted of “sexual connection with a young person aged between 12 and 16 years”. Deciding that jail time wasn’t appropriate, the judge instead stuck him in home detention for five months and slapped on 200 hours worth community work. Barnes still ended up with a first strike for a “serious violent offence”.
Fortunately for Barnes, the Court of Appeal sided with him, sending the more recent aggravated robbery case back down to the District Court so he could receive a new, more lenient sentence. As Judge Mark Cooper J explained, just because the three strikes law allowed judges to take “manifest injustice” into account when sentencing on the third strike doesn’t “mean that the Court ought not to be concerned about manifest injustice when sentencing stage-2 offenders.” “There was nothing ‘violent’ about the [first-strike] offence,” he acknowledged.
So just as in the Campbell case, it was only a judge’s limited discretion that saved an offender from an overly harsh sentence.
Unfortunately for Barnes, none of this changes the fact that whenever he makes it out of jail, he’ll now have two strikes to his name. If he ever commits any of the 40 crimes listed under the three strikes law again – and provided he’s healthy, he’ll have decades in which to do it – he could end up going back to prison for a much, much longer time. One need only read the warning read out by a judge to a different offender on his third strike:
If you engage in another aggravated robbery, whether it is minor aggravated robbery for $5 or it is a major bank robbery, you must be sentenced to the maximum term of imprisonment unless it would be manifestly unjust… 14 years imprisonment without parole.
It need not even be a robbery, however. As we’ve seen, even a case of nonconsensual, over-the-clothing touching – as repulsive as that might be – can be a third strike. In one case, a man was convicted and received a strike (his first) for manslaughter after he got into a drunken argument in the early hours of the morning and punched a man in the head, leading him to fall, hit his head on the floor and die of a haemorrhage.
It’s worth remembering at this point that the three strikes law was originally justified as something that would keep the streets clear of “the worst repeat violent and sexual offenders.”
Yet it’s not just these two cases that fail to fit this description. A whole host of other cases over the years show how the law works differently in practice.
One of the earliest three strikes cases that caused outrage was that of a 69-year-old man suffering from Parkinson’s and dementia who groped a fellow patient at his home for the disabled in 2010. The man’s lawyer argued that the behaviour was a side-effect of both his condition and the medication he was taking, something that isn’t unheard of. Regardless, the man, whose condition was so bad he needed help dressing, bathing and getting out of bed and had to be helped into court by two officers, was charged with two counts of indecent assault, facing a possible first strike.
As Wayne Goodall pointed out at the time, the case had startling implications. What if someone in a similar position committed the same offence again shortly after, receiving a second or third strike? Or what if someone on two strikes who hadn’t committed a crime in decades ended up carrying out the same offence while addled with a brain disease in a retirement village?
In another case, an 18-year-old boy got a first strike for assault after he accidentally injured a shopkeeper while trying to nick a couple of bottles from a liquor store. There was also the case of the 21-year-old who racked up two strikes after stealing $68, various items of clothing, a lighter and a cellphone from victims he kicked and punched. The judge warned him that “when you next steal a hat or a cellphone or a jacket or a skateboard … you will be sentenced to 14 years’ imprisonment without parole.”
Meanwhile, the Law Commission has pointed outcases where the three strikes law could have created havoc, had it been around earlier. In one, a woman with a “disturbed and disrupted upbringing” and unidentified prior convictions stabbed her abusive partner in the middle of an argument, accidentally killing him. The Commission noted that if these convictions had qualified under the three strikes law, her sentence would have been ten years without parole, as opposed to the five and six months she got.
In another, similar case, a woman who grew up abused by her mother and alcoholic step-father and had several violent convictions stabbed her partner in the leg, which killed him. She, too, would have received a minimum of ten years under the three strikes law, instead of the three she got. These were just two of a number of similar manslaughter cases that featured battered and abused women with unspeakably miserable childhoods and various psychological and cognitive problems committing manslaughter against their abusive partners.
“It is only a matter of time before a case comes before the court where an offender is convicted of manslaughter or murder and would have received a relatively short finite sentence but for the three strikes law,” the Law Commission concluded.
It’s true that the “manifestly unjust” provision gives judges the ability to avoid some of the worst outcomes of the law. Take the case of Daniel Clinton Fitzgerald, for example, a 45-year-old man who had a history of sexual offences, as well as a connected history of schizophrenia since he was 15. Fitzgerald got his third strike for trying to forcibly kiss a woman on the mouth, and subsequently scuffling with her friend. Deciding that the “present offence was the least serious assault of the three,” the High Court ruled last month that serving the full seven years for it would be “manifestly unjust,” and allowed him the possibility of parole earlier.
But this puts a lot of hope on the discretion of individual judges. And it leaves out the fact that particularly “tough on crime” governments might choose to appeal a more lenient sentence.
Crown Law under the National government appealed several three strikes sentences it thought were too soft. There was also the stomach-churning case of Jacqueline Wihongi, who was left cognitively impaired by a drug overdose at 13 and endured a life of physical and sexual abuse, including gang rape, from individuals ranging from her drug and alcohol counsellor to her partner, whom she killed. A judge originally sentenced her to eight years for the murder, deciding life in prison was manifestly unjust in her case. But the Crown appealed and the Court of Appeal upped the sentence to 12 years, chiding her for not dissociating herself from a gang. Wihongi’s wasn’t a three strikes case, but as we’ve seen, there are many like it that could have been. Would the Crown appeal against a judge’s mercy in those cases, too?
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Of course, there are other problems with the three strikes law. It only adds to our bulging prison population, the rate of which is the seventh highest in the OECD and is worse than that of Saudi Arabia and Venezuela. It has a disproportionate effect on Māori and Pasifika. And there’s littleevidence it’s actually effective – in fact, studies examining the California law show the opposite. Still, these case studies are a good reminder of the warped type of justice the law creates, something its detractors had warned about.
The irony of all this is that even as we introduce and cling to tough-on-crime measures like the three-strikes law, New Zealand’s never been safer. Crime has been steadily dropping over the past 20 years. By 2009, one year before the three strikes law was passed, the murder rate had halved from what it had been two decades previously.
We likely still haven’t seen the worst that the three strikes law can do. As law professor Warren Brookbanks pointed out in 2015, re-offending takes time, so it was always going to be a while before we found out the law’s true impact on our prisons and society. When Labour was elected, it looked like we might not have to. The government’s decision to keep the law in place helps ensure we will.
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