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Three Strikes

Having endured numerous cases of heinous crimes committed by repeat offenders, New Zealanders increasingly expressed a desire for tough sentencing laws for repeat violent and sexual offenders. SST worked tirelessly for the introduction of a Three Strikes policy into New Zealand law. We achieved this in 2010 and will continue to advocate strongly to ensure this key policy is maintained in the future.

How does ‘Three Strikes’ work?

New Zealand’s version of ‘Three Strikes’ took effect on 1st June 2010. (Entire Bill is here) From that date forward, offenders convicted of one of the 40 specified serious offences in the schedule, all of which are serious violent or sexual offences, and all of which carry a maximum term of imprisonment of seven years or more, receive a ‘strike’ warning.

The offences subject to ‘strike’ warnings range from murder, manslaughter, sexual violation and kidnapping at the most serious end, to robbery, indecent assault, wounding with intent to injure and assault with intent to rob at the less serious end.

Youth offenders are excluded. A strike can only be entered for an offence committed by a person aged 18 or older. But once entered, the strikes remain on the offender’s record unless the conviction is quashed. The strikes stay with the offender as a constant deterrent against future offending, and increasingly tough sentences if the offender is unwilling or unable to refrain from serious offending.

What happens at each ‘strike’?

Upon conviction for a first strike offence, the normal sentence the Judge considers fit is handed down, and the offender is given a warning of the future sentencing consequences of another ‘strike’ conviction.

Upon conviction for a second strike offence, again the normal sentence the Judge considers fit is handed down – but parole or early release is not available. If the Judge says four years imprisonment, then four years it is. Parole is normally able to be applied for after just 1/3rd of the Judge-ordered sentence is completed – but the second strike rule does not allow this, as the full term must be served. An offender convicted of murder as a second strike will be subject to ‘Life imprisonment without parole’ as ‘Life’ is the mandatory sentence for murder, and second strike sentences must be served without parole, unless ‘manifestly unjust’. The offender is given another warning of the future sentencing consequences of a further ‘strike’.

If the offender is unwilling or unable to refrain from committing a third strike offence, the Judge is required to impose the maximum sentence available in law for the offence committed. That sentence will be served in full, without any parole or early release. For example, if the third strike offence is ‘aggravated robbery’, an offence which carries a maximum of 14 years imprisonment, the offender will serve a full 14 years imprisonment. If the third strike offence is ‘wounding with intent to injure’, the offender will serve seven years, as that is the maximum term for that offence. For murder it would be life imprisonment without parole, as life is the maximum term for murder.

What about unusual offending circumstances?

New Zealand’s Three Strikes law allows the Judge to depart from the mandatory maximum terms of imprisonment without parole or early release at the third strike stage in rare and limited circumstances where the Judge is satisfied that to impose the maximum penalty without parole would be ‘manifestly unjust’ given the circumstances of the offence and/or the offender. This is a high threshold, but allows rare or unusual circumstances to be taken into account in allowing a lower sentence.

How does Three Strikes in New Zealand differ from the approach in the USA?

SST always advocated for a form of Three Strikes that targeted only serious violent or sexual offenders, not minor crime. Three Strikes in New Zealand can be colloquially referred to as ‘Three strikes and the max’ whereas most USA versions can typically be referred to as ‘Three strikes and you’re out’.

There are varying approaches in the USA. Some states have a Three Strikes sentencing law, others do not, although most have increasingly tough sentencing rules for ‘habitual offenders’. The most common approach in US states is to apply a sentence of ‘25 years to life’ for a third strike offence, which typically has to be a ‘felony’ offence (a serious crime). This means the offender would typically serve a minimum of 25 years before being eligible for parole.

Until 2012, the Californian version of Three Strikes was the toughest in the USA. Too tough in SST’s view. Until being amended in 2012, the Californian version allowed a ’25 years to life’ sentence to be imposed for a minor offence such as shoplifting, car theft or common assault. The Californian version now requires the third strike offence to be a serious felony offence to qualify for the 25 years to life provision.

It is the ‘max’ provision at the third strike stage of the New Zealand version of Three Strikes which provides the degree of proportionality between the offence committed and the sentence handed down at the third strike stage. The maximum sentence for the offence committed is handed down, rather than a blanket 25 years to life. It’s still very tough, as it is meant to be, but not excessive.