The Sentencing and Parole Reform Act 2010 introduced the “three strikes law”. The legislation was intended to deter repeat offenders with the threat of progressively longer mandatory prison terms, and to penalise those who continued to reoffend through a three-stage process. This mandatory sentencing regime was repealed by the Three Strikes Legislation Repeal Act 2022.
The new government proposes to reintroduce the three strikes regime. This would be a retrograde step.
The original law was based upon qualifying offences. If a person committed offences of a sexual nature or that involved serious violence, they were dealt with under the three strikes legislation. For a first strike, an offender would be sentenced in the usual way, except that a warning would be given as to the consequences of committing any further qualifying offences. This warning would be given to the offender orally in court and in writing.
For a second strike offence, if an offender was sentenced to a term of imprisonment, that term would be served in its entirety. There was no ability to apply for early release on parole which is usual for anyone sentenced to prison unless a minimum non-parole period was imposed. Once again, a warning would be given in the event a third qualifying offence was committed.
For a third strike offence, the offender was to be sentenced to the maximum sentence prescribed by law and there was no opportunity to apply for parole. That applied irrespective of the seriousness of the offence unless the court considered it manifestly unjust to do so. Thus, if an offender’s third-strike offence was a comparatively minor indecent assault, a sentence of seven years’ imprisonment – the maximum – had to be imposed.
If the offender was convicted of murder on their second or third strike, the court was required to impose a life sentence without parole, unless it considered such a sentence would have been manifestly unjust.
It was possible to avoid the rigours of the three strikes regime but this often required some intellectual gymnastics by sentencing judges to bring the case within the “manifestly unjust” rubric.
The three strikes regime was a retrograde step in the sentencing process for the following reasons: First, it was mandatory and arbitrary. It gave a sentencing judge little room to move in imposing a sentence.
Second, it severely limited a judge’s discretion to take into account factors which were set out in the Sentencing Act. It restricted the judiciary’s ability to consider the individual circumstances and context of the offending when determining sentences.
Third, the regime was punitive and retributive. Neither punishment nor retribution is stated as purposes of sentencing and indeed the word “punishment” does not appear in the Sentencing Act. In addition, the regime contradicted one of the purposes of sentencing, which is to impose the least restrictive outcome.
Fourth, the High Court, Court of Appeal, and Supreme Court found sentences imposed under the regime contravened the Bill of Rights Act 1990.
Fifth, statistics revealed that Māori were overrepresented in the group of offenders who received a strike sentence.
Sixth, the regime was unnecessary in that the courts could already impose sentences equivalent to those under the three strikes law when it was considered appropriate.
Finally, there was no evidence to suggest that the regime actually reduced offending.
Despite those reasons, the new government intends to reintroduce three strikes. Clearly, to reinstitute this arbitrary, irrational and futile sentencing regime would be a retrograde step. I suggest that government plans in this regard be reconsidered and shelved.
David Harvey is a retired district court judge.
