Three Strikes Mark II will be a disaster: Former Act MP David Garrett

Former Act MP David Garrett says the Three Strikes law should be amended to instruct judges that third strikers only receive the benefit of the manifestly unjust proviso in the rarest and most unusual cases – as is the law now in cases of murder.

OPINION

One of the supposed reasons for the extensive modifications proposed by the coalition Government to the former Three Strikes law is to make it “more workable”.

The law passed in 2010 was absolutely workable and indeed worked just as it was intended – other than the href="https://www.nzherald.co.nz/topic/justice-system/" target="_blank">judges of the Court of Appeal cynically re-writing the “manifestly unjust” proviso which allowed third strikers to avoid the consequences of a third strike – which Parliament intended.

The intent of the law was twofold: to deter those capable of being deterred from serious violent offending, and to imprison for much longer periods those who were unwilling or unable to curb their violent behaviour, thus keeping them away from the rest of the population for longer.

In the 12 years the law was in force, there were about 13,000 first strikers, 800 second strikers and only 25 third. That is an excellent example of what is known as “specific deterrence” – deterring a certain class of criminal, in this case serious violent offenders (all “strike” offences were offences of serious violence or sexual offending attracting a maximum sentence of at least seven years’ imprisonment).

In 2015, Ministry of Justice officials were asked to compare the offending statistics for the five years prior to June 2010 – when the law came into effect – with the five years after. Second-strike offending was 34 per cent lower in the second period compared with the first. Further, only one third striker had emerged, while four persons would have incurred a third strike prior to the Three Strikes law.

The Ministry of Justice has been asked by several people to update those figures so as to compare the 10 years with Three Strikes to the 10 years prior. The department has refused, saying it would be “too complicated”. That is clearly nonsense, since they have done it before. Given officials’ obstruction and downright hostility 14 years ago, I suspect the real reason is they do not wish to release evidence showing that the law was in fact acting as a deterrent.

David Garrett

So, what is wrong with the proposed new law? Let’s start with the proposal that a strike would only be a strike conviction if the offender received more than two years in jail. This “threshold” issue came up in 2010, but the proposed qualifying period then was three years rather than two. The Act Party objected to that because it was anticipated that activist judges would sentence would-be strikers to two years 11 months, so as to avoid the law altogether.

That is exactly what will happen now. Judges who would normally have imposed a sentence of, say, two years and 11 months will now sentence an offender instead to one year and 11 months to avoid them receiving a strike.

Why do I believe judges will manipulate the law in this way? Because they already have. The “manifestly unjust” proviso – allowing judges to avoid the full effect of a third strike - was word for word the same as in section 102 (1) of the Sentencing Act 2002. That section allows judges, in cases of murder, to avoid the presumptive sentence of life imprisonment if that would be “manifestly unjust in all the circumstances of the offence and the offender”.

In the 22 years since the Sentencing Act 2002 has been in force, the proviso has only been invoked in a handful of cases – almost always an elderly man killing his terminally ill wife, either at the spouse’s request or in a botched suicide pact. Back in 2010, everyone commenting on the proposed Three Strikes law – whether on the left or the right of the spectrum – assumed that exactly the same test would be applied in the case of third-strike offenders.

I recall one hand-wringing article lamenting that the hurdle for a finding of manifest injustice for third strikers was too high, and that consequently there would be many cases of gross injustice. The writer – now a District Court Judge - need not have worried; the Court of Appeal was to ride to the rescue and propose a completely different test for third strikers. In short, every single third-strike murderer – most of whom Parliament intended should spend the rest of their lives in jail – in fact avoided the sentence of life without parole. It was the worst case of judicial activism ever seen in this country.

The last limb of the absurd present proposal is that all “strike” offenders will have their slates wiped clean, and they will be treated as having no strikes at all. Those 825 second and third strikers will be laughing like hyenas – particularly the second strikers who, notwithstanding the judicially watered-down law, faced significantly greater consequences than hitherto for a third-strike offence if they offended similarly on their release.

It has been argued that habitual criminals give no thought to the consequences of their offending, for any number of reasons. To that I will say two things: I have had illiterate criminals explain to me how the law worked better than many lawyers. Being illiterate does not mean a person is unable to understand cause and effect.

Secondly, now-retired criminologist Greg Newbold – who was once a prisoner himself – told me that most inmates well understood how the law worked. Perhaps that’s why there was the 34 per cent reduction in second-strike offending referred to above.

So, how would I amend the Three Strikes law? After studying the effects of the law for 14 years, I would make only one change – and that is to require judges to use the same test for manifest injustice in third-strike offending as applies to cases of murder. In other words, judges would be instructed that third strikers should only receive the benefit of the manifestly unjust proviso in the rarest and most unusual cases – as is the law now in cases of murder.

Given the hostility of many judges to the law, I have my doubts whether such a codification of the test for manifest injustice would work. Being clever people, activist judges would still seek to circumvent the law, no matter how clearly it was written. Sadly, there is little we can do about that, short of sacking some. And that is not going to happen.

David Garrett was the Act Party justice spokesman in 2010 and worked closely with then Corrections Minister Judith Collins on the original Three Strikes law. He is now semi-retired and living in Tonga.