A respected Northland lawyer says the threat of increasingly longer sentences under a Three Strikes regime doesn't deter people from offending, especially not young people. Photo / Brett Phibbs
Legal experts say the government’s proposed changes to the Three Strikes regime - as part of its plan to revive the controversial law - won’t overcome problems that saw it axed two years ago.
Respected Northland defence lawyer Wayne McKean said the threat of being jailed for longer had no deterrent or rehabilitative effect on offenders - particularly young offenders.
Discussions he’d had with colleagues in Northland’s Criminal Bar Association, and with judges, showed there was a “real anxiety” about Three Strikes making a comeback.
Introduced by a previous National coalition government under its Sentencing and Parole Reform Act 2010, Three Strikes aimed “to hold serious, repeat offenders to account” and applied to 40 qualifying offences - almost all major violent and sexual offences with a maximum penalty of seven years or more imprisonment.
The law was repealed in 2022 by the Labour government after a legal decision, which found it breached the Human Rights Act.
In that decision, the Supreme Court found the seven year maximum prison term without parole, handed down to Daniel Fitzgerald for indecent assault as a third strike offender, was grossly disproportionate.
He was subsequently awarded $450,000 in compensation. Fitzgerald, who had mental health issues, had kissed a woman on a Wellington street - a lower end offence of its type for which a jail sentence might not otherwise even have been considered.
The current government wants Three Strikes back up and running by June 30, this year.
Proposed changes would see it:
Proponents of the law’s revival believed it would keep dangerous criminals off the streets. They point to the use of similar recidivist offender laws in other countries.
Opponents said Three Strikes led to disproportionately harsh sentences, had no measurable deterrent effect, and amplified the over-incarceration of Māori and Pasifika defendants, who had been given more than 50 percent of the strikes.
The New Zealand version of Three Strikes was modelled on California’s 1994 one, which was later denounced as the “toughest law in America”.
Under it, prison terms of 25 years to life applied for each consecutive strike.
It led to hundreds of shoplifters serving life sentences and such overcrowding in prisons that in 2011, California was ordered to reduce its prison population by 46,000 within two years.
Retired New Zealand district court Judge David Harvey said there was “no place” for Three Strikes in New Zealand’s justice system”, despite the proposed changes.
Three Strikes was “arbitrary and prescriptive” and deprived sentencing judges of any discretion to make the punishment fit the crime, he said.
Some people wrongly believed that the Sentencing Act was all about punishing people - in fact the word “punished” wasn’t even mentioned in the Act and “holding someone to account” was just one of the purposes of sentencing, Judge Harvey said.
McKean said the underlying premise of Three Strikes - that sending people to prison made New Zealand a safer place, was wrong.
“There’s a high risk those people will come out of prison more dangerous because our prison environment makes them more dangerous.
“I know the government is talking about rehabilitation but no government in the last 60 years has been able to make or provide any meaningful rehabilitation (to inmates) except maybe in the area of sex offending.”
There was also a high risk men would join a gang while in prison.
Furthermore, anyone sentenced to jail would have a lifetime of difficulty getting employment, McKean said.
“So Three Strikes is a self-fulfilling prophecy - you end up jailing people for longer and longer terms, which makes them more dangerous, more likely to come out in a gang with little chance of getting better or making a fist of things.
While the currently proposed changes were not enough to iron out those issues, there “may well be a place for a Three Strikes law that is just”, he said.
“Because there’s nothing wrong with having a system that removes from society the most dangerous people”, albeit the New Zealand courts could already do that, he said.
“The concern is that this current version of the legislation doesn’t avoid where we got to last time.
He said the 24-month benchmark at which a strike would apply was “too low”. It wasn’t logical to say someone sentenced to 25 months as opposed to 23 should get a strike.
As far as Three Strikes providing a deterrent to young people, McKean said the threat of a long sentence “wouldn’t even dawn on” them.
“The evidence is strong that young people don’t develop mature judgement until their mid to late 20s, so young people, often intoxicated or under the influence of something, making a decision on the spur of the moment are not going to think about the consequences - that’s just a reality.
“You might get something go down at a party and someone punches someone in the face and that person falls on the ground and dies and suddenly that becomes a strike offence and the person who’s punched them has the prospect of a lengthy jail term.”
McKean said he agreed with a suggestion by one of his clients that there should be provision within Three Strikes to remove the black mark of a strike after five to seven years of good behaviour.
His client’s comment was testimony that “dialogue and discussion on these subjects sometimes produced better outcomes”.
He hoped the bill would go through a “robust” select committee process.
“The devil’s in the detail,” McKean said.
The Advocate also spoke to former Black Power gang member Martin Kaipo - now the chief executive of Te Hau Awhiowhio o Otangarei Trust, who had publicly supported Three Strikes ahead of it last being introduced.
Kaipo still believed there was a place for it but only where the crime and an offender’s history justified it.
He’d like to see it extended to recidivist family harm offenders and scam artists.
A 2018 evidence document produced by the Ministry of Justice considered the impact of the regime on crime rates in New Zealand, finding that changes in the rates of sexual assault, robbery and serious assault (which made up more than 90 per cent of strike offences) could not be easily attributable to the Three Strikes law.
It also found no clear indication that the legislation deterred people from committing qualifying offences.
Sarah Curtis is a news reporter for the Northern Advocate, focusing on a wide range of issues. She has nearly 20 years’ experience in journalism, much of which she spent court reporting. She is passionate about covering stories that make a difference
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