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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.

How many ‘strikes’ have been recorded in New Zealand?

Currently there are over 3721 first strikes, and just 29 second strikes. There are no third strikers….yet.

Profile of ‘second strikers’

As at 31 December 2013, of the 24 second strike offenders for which we have information:

  • 100% have numerous prior convictions as adults. And these are not for minor offences. They include burglary, male assaults female, possession of offensive weapons, robbery, aggravated robbery, indecent assault, theft and many others.
  • 46% have prior convictions for ‘strike’ offences before Three Strikes taking effect on 1 June 2010. Because Three Strikes was not implemented ‘retrospectively’ these prior offences do not count as ‘strikes’ against their record.
  • The average age of second strikers is just under 26 years, and all but one are men. The youngest second striker is 19 years old, and the oldest 45 years old, at the time of second strike sentence.
  • 67% received a sentence of imprisonment for their first strike offence/s. Of those imprisoned, the average term was 14% of the maximum available. The average term imposed was 20 months.
  • 38% committed their first strike offence while on bail, parole or while still subject to sentence.
  • 92% received a sentence of imprisonment for their second strike offence/s. Of those imprisoned for their second strike offence/s, the average term was 24% of the maximum available. The average term imposed was 35 months. The term imposed is served without parole or early release under the three strikes law.
  • 67% committed their second strike offence while on bail, parole or while still subject to sentence.

What does this all mean?

Second strikers are very serious criminals. They are bullies, thugs and sexual predators who take what they want by force, violence or threats of violence. All have numerous other criminal convictions and a trail of victims left in their wake. These are exactly the offenders we expected would be subject to the Three Strike law.

Each second strike offender has been warned by a Judge that committing a further serious violent offence will result in the maximum term for the offence they commit being imposed, and at least 7 years imprisonment in any case. A third strike offence will see them locked away from the community for an extended period of time.

We genuinely hope no second striker goes on to become a third striker – because that means another person has been victimised or brutalised. But in time, unfortunately, there will be a small number of third strikers – offenders unwilling or unable to refrain from further serious violent or sexual offending. The third strike sentence will intervene to remove those individuals from society for an extended period of time and bring an end to their pattern of repeated serious violent or sexual offending.