My submission on new three strikes bill

SUBMISSION OF DAVID FARRAR ON THE
SENTENCING (REINSTATING THREE STRIKES) AMENDMENT BILL TO THE JUSTICE SELECT COMMITTEE

About the Submitter

1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission. 

The overall Bill

2. I submit that the bill should not proceed, unless significantly strengthened, as it has been so watered down to be ineffective, may actually lead to shorter sentences and will provide false reassurance to the public regarding serious violent and sexual offenders.

The former three strikes law

3. I regarded the former three strikes law as generally being a good and effective law. Data released by the Ministry of Justice comparing the five years before and after the Three Strikes law showed that the number of second strike offences before the law was 103 and after the law was 68 – a 34% reduction
4. I thought it was very unhelpful that the Ministry has refused to release data to do a more up to date comparison of 10 years before and 10 years after the three strikes law. I would recommend the bill be amended to require the Ministry to publish such comparative data at least annually.

Not carrying current strikes over

5. I was stunned when I learnt that this bill would not carry over all the strikes from offenders under the previous three strikes law. The decision not to do so will greatly reduce any effectiveness as a deterrent, and make New Zealanders far less safe by effectively resetting all serious recividst offenders to zero strikes.
6. The Government seems to have been captured by officials who seemingly labeled any continuation of the former strikes as retrospective legislation. This is a weak and incorrect assertion that is obvious to anyone who has read S12 of the Legislation Design and Advisory Committee guidelines.
7. Legislation is retrospective if it applies to an event or action that has already taken place. Carrying the strikes over would have no impact on an individual for their past actions, unless they commit a crime in future. The punishment will apply to their decision to commit a crime, in the knowledge of what the law now provides.
8. The guidelines state if a penalty is increased between commission and conviction, the lesser penalty should apply. Carrying the strikes over would be consistent with this, as they would only apply to crimes committed after this bill is passed into law.
9. I would note that every person who has a first, second, third or fourth strike under the old law was told by the relevant judge that they had gained a strike, and what the consequences of further offending would be.
10. The argument that differences between the old and the new law made it too difficult to carry over strikes is also fallacious. 

The new threshold for strike offences

11. The former law meant that anyone who commits a crime designated as serious violent or sexual offending (generally crimes with a maximum sentence of seven years or more) would automatically get a strike. This new law proposes that only if a judge sentences the person to two years or more in prison, will a strike be obtained.
12. This is a terrible idea. It removes the idea of certainty of consequence (a strike) and will reduce the number of serious violent and sexual offenders who get strikes by over a third. Considering the only impact of a first strike is a judicial warning about future offending, why would you want to massively reduce the number of serious offenders who get warnings? Many heinous crimes get a sentence of under two years, and the whole idea is to discourage further offending, and punish it if they continue.
13. There is a case for a two-year threshold for third strikes, which I will deal with later. But having a threshold for first and second strikes weakens the law so much, it turns it into a Claytons law.
14. As noted by Labour MP Dr Webb, this law could well lead to criminals getting shorter sentences for their first strikes. It is no secret that most judges don’t like a law that reduces their discretion, and hence will be incentivized to impose sentences of under two years to avoid triggering a regime they disapprove of. 

Judicial discretion

15. The original law had a provision for some judicial discretion for second and third strikes if the outcome would be manifestly unjust. The use of this provision morphed from previously being extremely rare to so common that a majority of third strikers were exempted from the normal third strike consequence
16. Even worse, the Supreme Court in an unprecedented decision effectively overrode the three strikes law and declared in the Fitzgerald case that a maximum sentence no longer need be given for a third strike (the parole provision is what was subject to manifestly unjust) if doing so would “shock the national conscience”
17. I happily concede the Fitzgerald case was one with an unjust initial outcome as his offending was relatively minor. However that can be dealt with in other ways, as I will explain later.
18. The problem this Supreme Court precedent set is that judges then lowered dramatically what they considered would shock the national conscience. In the case of Zacquirin Tikena-Stuchbery, the High Court ruled that a 14 year sentence for his prolonged violent and brutal beating of a woman (his third strike) would shock the national conscience and instead gave him a five year sentence with parole eligibility in 2.5 years.
19. This decision so outraged me that I decide to test whether the sentence set in statute would really have shocked the national conscience. So in an omnibus poll I described the offending to respondents and asked to choose between three sentence options, being:
    a) 14 years with no parole (the full third strike)
    b) 14 years with parole eligibility in five years (a third strike reduced by being deemed manifestly unjust)
    c) 5 years with parole eligibility in 2,5 years (the sentence ignori9ng three strikes law)
20. A plurality of 43% chose (a) and a further 38% chose (b) so 81% of NZers (including 76% of Labour voters, 81% of Green voters and 75% of TPM voters) were comfortable with a sentence that the Judge had deemed would shock the national conscience. This illustrated how totally out of touch with ordinary NZers many judges are. For those interested only 10% of respondents chose (c)
21. I recommend that if this law is strengthened and proceeds, that language be inserted to make clear that use of manifestly unjust provisions should be exceptional and rare, and that no other Act invalidates the provisions of this Act.
22. While outside the remit of this committee, I would also advocate that the Minister of Justice in his third reading speech (if it proceeds) explicitly state that any Judge who feels that imposing a sentence under this law would shock the national conscience, resign their warrant as the appropriate form of protest, rather than ignore the clear intent of Parliament.

A threshold for third strikes

23. While I oppose having a sentence threshold for first and second strikes, I do believe that there is a principled case to have one for third strikes – the strike where you actually get a longer term of imprisonment.
24. A two year threshold for third strikes (as in the Judge finds under norming sentencing guidelines the offence would not have resulted in a jail term of over two years) will prevent cases such as Fitzgerald.
25. It would also eliminate the need for manifestly unjust provisions for the third strike.  

Other changes from the old law

26. The change in the second strike penalty for murder from life without parole to life with a 15 year non-parole period seems sensible.
27. A 20% reduction in third strike offences for guilty pleas also seems sensible to avoid needless trials
28. A minimum 10 year term for third strike manslaughter and life with non-parole for 20 years for third strike murder also seem sensible and better than the old law.

Thank you for considering this submission. I would like to make an oral submission in support, and look forward to appearing.
David Farrar