I am going to exercise my author’s privilege and plagiarise this post that I wrote in 2018 which is still relevant.
The three strikes legislation, the brainchild of dead baby identity stealing former ACT MP David Garrett, is no more.
The legislation was a sports slogan masquerading as a serious penal policy. Its genesis was the US of A where an informed considered approach to criminal justice is subservient to good old boy tough on crime toting politicians.
It basically has a list of offences where first time up a defendant will be given a warning, second time up an offender serves the imposed sentence without parole and third time up unless it would be manifestly unjust an offender has to serve the maximum sentence for the offence.
This has resulted in anomalous results. In a local case the result of which was described by Andrew Geddis as being batshit crazy an offender on his third strike was sentenced to seven years for pinching a prison guard’s bottom. And in America one legendary case involved an offender who was sentenced to 25 years for stealing a piece of pizza.
The basic problem is that under these schemes Judges have no discretion to deal with the nuances of a case and work out a result that is fair and just. The underlying pretext is that all judges are too soft and the heavier the sentence the better.
The issue was considered by the Supreme Court in the case of Fitzgerald v R. Mr Fitzgerald’s circumstances and the circumstances of the offending were described in these terms:
[15] The appellant suffers from long-standing and serious mental illness, which began when he was aged 15, over 30 years ago. He has been admitted at least 13 times to mental health facilities, but has otherwise been treated in the community. He suffers from schizophrenia and substance (drug and alcohol) abuse. He has a history of paranoid delusions and auditory and visual hallucinations, and needs ongoing mental health care. These health issues have led to difficulty in sustaining accommodation.
[16] On 3 December 2016, the appellant approached two women walking along Cuba Street, Wellington. He grabbed one of the women by both her arms, pulled her towards him and told her he wanted to kiss her, before trying to kiss her mouth. She moved her head so that the kiss fell on her cheek. The appellant was convicted of indecent assault in respect of this conduct.
[17] The appellant also assaulted the second woman. She tried to pull the appellant off her friend, and in response the appellant grabbed the second woman by her arms and pushed her backwards towards a nearby wall, holding her for a moment before letting her go. The appellant was convicted of assault for this conduct.
[18] The overall incident lasted a moment or two, but was distressing nevertheless. The victim of the assault, who had been subject to past trauma, provided a victim impact statement in which she described the continuing emotional impact of the assault.
Mr Fitzgerald was sentenced to seven years for the indecent assault.
The court tried to perform procedural somersaults and work out if a discharge without conviction, which would then remove the need to apply the three strikes law, was appropriate. Discharges are available where the consequences of a conviction are out of proportion to the gravity of the offence.
It did not get there. Instead the Justices decided, in a very judicial way, to say that the law was bollocks.
A majority held that the sentence of seven years’ imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders, and was therefore so disproportionately severe as to breach the Bill of Rights. They also agreed that this right not to be subject to cruel or disprortionately severe punishment is not subject to the reasonable limits protection under the Act. Based on the Parliamentary debates and promises made by right wing politicians they held that Parliament did not intend, in enacting the three strikes regime, to require judges to impose sentences that breach s 9 of the Bill of Rights and New Zealand’s international obligations.
The decision highlights why it is rational and just to repeal this law.
Andrew Little’s justification for the repeal of the law which predates the Fitzgerald decision is reported in this Stuff article:
Justice Minister Andrew Little has signalled what could be the beginning of the end of New Zealand’s three strikes law.
Speaking to media at the Beehive on Wednesday evening, Little said a proposal was going to Cabinet in about 10 days time to endorse a repeal of the controversial law.
“It will then go through the normal legislative, Parliamentary process. We are not doing wholesale reform until we get a good public debate going.”
He said the tough line the justice system was currently taking on criminals was “not working”.
“I think there is an acceptance now that it just doesn’t work,” Little said.
The third reading debate in Parliament was interesting. Only one National MP mentioned that Bill of Rights and it was only in passing. The essence of their logic was longer sentences good, shorter sentences bad.
National has promised to reinstate a similar law if they regain power next year.
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