Warren Brookbanks

This article critically reviews the “three-strikes” sentencing- regime law that was introduced by the New Zealand Parliament in May 2010. The article addresses the fundamental question of whether it constitutes good law reflecting sound penal policy, or does it represent an excessive penal response to the perceived problem of violent crime. It is asserted that no overarching benefits are provided beyond previously adopted sentencing options. It lacks a sound rationale and conflicts with existing and established sentencing principles.

three strikes; New Zealand; California; serious offences; sentencing
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When, in May 2010, the New Zealand Parliament passed legislation introducing a “three strikes” sentencing regime law into New Zealand law, public opinion was polarised. The legislation was broadly modeled on Californian legislation introduced in 1994, although the New Zealand model was significantly less draconian than its Californian counterpart. The legislation’s purpose was to identify and punish the “worst of the worst” offenders. Whether it has achieved that aim is something that is considered in this article. While the legislation was highly controversial in the months prior to its enactment, in the five years since its introduction it has become an almost invisible aspect of the New Zealand criminal justice landscape, with few highly visible effects, whether for good or for bad. For the most part, and for most citizens, the three-strikes law has flown largely under the radar of public debate.

New Zealand’s three-strikes law raises a fundamental question. Is it good law, reflecting sound penal policy, or does it represent an excessive penal response to the perceived problem of violent crime — a manifestation of rising penal populism? Clearly, a case may be made for the imposition of tough sentences on those occasions when grave offending warrants a punitive response from the courts. Such options have long been available under New Zealand law, including the imposition of lengthy prison sentences (up to, and including, life imprisonment) for the most violent offenders and preventive detention for those whose, violent or grave sexual conduct justifies indeterminate incapacitation. These sentences nevertheless preserve such fundamental sentencing principles as proportionality — the idea that a penalty should not be out of proportion to the gravity of the offence committed — and the principle of restraint — the recognition that imprisonment is “a severe deprivation for most of those incarcerated ...[and] that it should be used with restraint”.1 These principles are designed to ensure that all offenders are treated equitably within the existing sentencing framework, while ensuring that behaviour that poses an appreciable risk of further harm is sanctioned in ways which best protect the public.

Regrettably, the three-strikes law ignores, if not actually subverts, these principles. Indeed, it might be argued that the three-strikes law is a manifestation of the notion of “bifurcation”, the idea that “soft-end” offenders (for example, status offenders and victimless crimes) are diverted out of the criminal justice system, while “hardcore” offenders are targeted for more severe penalties by enforcement agencies.2 Such policies are often ill thought-through and over-extensive.3 Bifurcation is not a grounding rationale of sentencing theory, yet it is an idea that has evidently influenced the way in which sentencing policy has developed in New Zealand. Its focus upon the risk posed by persistent offenders dis-empowers the ameliorative function of proportionality and ensures a continuing dependence upon incarceration, while offering, at best, illusory protection to the public. We are thus exposed to a law which is manifestly anti-therapeutic, and imprisonment-focused, and which is unlikely to deliver on its much-vaunted promise of “...making our homes, our businesses, and our communities safe again”.

This article shall have four principal aims. First, to summarise the history and the key elements of the New Zealand three-strikes law. Second, to consider how the law has evolved and impacted on the criminal justice system. Third, to consider the extent to which the law has achieved its intended goals. Fourth, we will examine a range of suggested strategies that have been advanced for limiting the impact of a three-strikes law. The article concludes by considering the question “what is the future of three strikes in New Zealand?”