The courts really, really don't like the "three strikes" sentencing regime. And they're doing what they can to avoid having it force them into actions they think are wholly disproportionate.

New Zealand has had a "three strikes" sentencing regime in place for some six years now. It was controversial when introduced. It's effectiveness is the subject of some debate (I urge people to read Warren Brookbanks' excellent Greg King Memorial Lecture Paper here). But what is indisputable, I think, is that the judiciary really, really doesn't like it.

At the risk of oversimplifying, the three strikes regime works like this. There are a set list of qualifying "strike offences". If you are sentenced for one of these ("first strike"), you get a warning only (on top of the normal sentence for your actions). If you subsequently are sentenced for another ("second strike"), you get a final warning and must serve any jail time for your actions in full (i.e. you get the normal sentence for your actions, but no chance of parole from it). If you then get a "third strike" sentence, you must get the maximum sentence for your actions and serve it in full (i.e. whatever the offence, you must get the longest possible jail term and no change of parole from it). However, there is an escape clause for second-and-third strike offences, in that if it would be "manifestly unjust" not to allow for the chance of parole, the court still can allow it.

Why does the judiciary not like this regime? After all, it would seem to make their job a lot easier - just plug in the numbers and get the sentencing outcome automatically! Job done and on the golf course by lunch!!

Well, as I wrote in a post back in February of last year:

criminal sentencing is a bloody complicated thing to do. It involves trying to achieve a whole number of social ends, some of which point in opposite directions. Judges are required to follow a set of principles, including that they "must impose the least restrictive outcome that is appropriate in the circumstances". In setting a sentence, they have to consider a wide variety of aggravating and mitigating factors. The whole point of which is that a judge is trying to fit an appropriate response to criminal wrongdoing to the particular individual who has committed the act.

In the midst of this punchbowl of flavours, the mandatory requirements of the three strikes regime floats like a great big turd. To simplify a bit, it tells judges not to look at anything except the fact that the offender has done other bad things in the past. If they have done those bad things, then the consequences are meant to be all but set in stone.

For this reason, judges have been very, very reluctant to apply the three strikes regime to send people to jail for very lengthy periods (including up to the rest of their lives, for some offences) without having any chance of parole at all. For example, in every one of the five "second strike" cases of murder to come before the courts, the sentencing judges have found it would be "manifestly unjust" in the particular circumstances to impose a sentence of life-without-parole. 

That approach was affirmed back in August by a unanimous 5 member Court of Appeal, in a case called R v Harrison and Turner. As my colleague Marcelo Rodriguez Ferrere has explained:

The Court of Appeal noted that in addition to the three strikes regime, Parliament also had enacted the NZBORA, section 9 prohibition against “disproportionately severe treatment or punishment”. Given the Court’s task to assess “legislative intention in the light of its text and purpose, having regard to the statutory context”, the Court held that:

in some cases this may require the court to endeavour to reconcile any tensions arising from the wording. Here the court must seek to resolve the tension that exists between Parliament’s right to determine a sentence for a particular offence and the constitutional right of citizens to be free from disproportionately severe punishment.[1]

It resolved this tension by assuming “that Parliament, in introducing the new sentencing regime for repeated serious violent offending, intended that any sentence imposed on an offender should not be grossly disproportionate to the circumstances of the offending and the offender contrary to s[ection] 9.”[2] Accordingly, the Court’s “approach to the interpretation of ‘manifest injustice’ is intended to ensure [the statutory provision] is interpreted sufficiently broadly to avoid inconsistency with the Bill of Rights Act altogether.”[3]

The Court therefore concluded that the application of the "manifestly unjust" test:

requires an intensely factual consideration of the circumstances of the offending and the offender, including: the sentence that would otherwise be appropriate for this offending, the consequences of a whole of life sentence, the actual culpability of the offending and the risk posed by the offender. Ultimately, the judicial approach to the scope of the manifestly unjust exception is intended to avoid wholly disproportionate sentencing outcomes.

And applying that "manifestly unjust" test to the two individuals before it, the Court concluded that in both cases it would be grossly disproportionate to send them to jail for the rest of their lives without any hope at all of ever being released. So it instead confirmed an "ordinary" life sentence with a minimum non-parole period for each - meaning that they must serve that time in jail before they can even try to convince the parole board that they are safe to be released. But if they can then convince the board, then they will be able to be released.

Of course, this test does leave open the possibility that it would not be manifestly unjust (i.e. "wholly disproportionate") to impose a life-without-parole sentence for some second-strike murder in the future. But the point is that the circumstances of the offence and offender would have to present a compelling case for such a draconian punishment, rather than the mere fact that the offender has committed some other crime in the past (which is what the "three strikes" policy was meant to respond to). It is, in other words, still a judicial decision rather than an automatically applied outcome.

And now we have a similar approach being taken in what is (I believe) the first "third strike" case to come before a New Zealand court. It involves one Raven Casey Campbell, a now 25 year old man. By the age of 22, Casey racked up two separate "strike offences" - robbery and aggravated robbery. He was then serving his sentence for the second strike offence when this occurred:

A female Corrections officer was standing in a doorway supervising prisoners in the kit locker, where prisoners exchange their clothing, towels and bedding for fresh items. Standing behind the Corrections officer, [Casey] grabbed her right buttock, squeezed it quite hard, and held on for about 1 to 2 seconds. 

[Casey was] told to go to the guard room but ... did not make any attempt to move. When the Corrections officer went to leave the yard through a set of steel gates, [he] followed her, grabbed the gate, and asked the Corrections officer if [he] could talk to her. [Casey was] told to move [his] hand so the Corrections officer could leave and [he] did so. The Corrections officer was not injured but she suffered stress and has been off work. 

The issue is that Casey's action constitutes indecent assault (as he admitted when he plead guilty to the charge). And indecent assault is a "strike offence". And as this would be Casey's third strike offence, that would mean he has to be sentenced to the longest term available for such actions without any chance of parole - which for indecent assault would mean seven years in prison before being released.

So here, again, is the challenge for the sentencing judge, Toogood J. Must Mr Casey stay in jail for a mandatory seven years with no chance of release for actions which - without seeking to downplay them - were at the lesser end of the offending range and would not attract anything like such a sentence had he not done certain bad things in the past?

Well, under the legislation, Toogood J had no option but to impose the full seven year sentence. The law allows for no discretion at all in this respect. That's not to say that he was happy to do so:

I agree that is very harsh given that what you did was not the most serious assault of its type, but Parliament has determined that your history of violent offending requires a very stern response to protect the public from you and to act as a deterrent to you and others. It may seem very surprising that this consequence could be required by law for an offence of this kind, but that is the law and I have no option but to enforce it. 

When reading this, it helps to keep in mind that "very surprising" is judicial code for "bat shit crazy". And so, when it came to the question of whether that seven year sentence should be served with or without the chance of parole - an issue that judges do have discretion over under the three strikes regime - Toogood J was having none of it:

At the age of 25 you are still relatively young and you do not have a long list of previous convictions. None of your previous convictions relate to sexual offending. You pleaded guilty and I am satisfied you are genuinely remorseful. Having no prospect of parole would not encourage you to take steps to change your behaviour and to engage in rehabilitative programmes while in prison as you have said you are willing to do. In that regard, I also take the victim’s sympathetic views into account.

Having considered all of these factors, particularly the nature of the offence and your prior offending; the early plea; your remorse and insight, and your rehabilitation prospects, I have no doubt that requiring you to serve a full sentence of seven years’ imprisonment without parole would be a grossly disproportionate outcome. After you have served one third of the sentence, it will be a matter for the Parole Board to determine whether and when it is safe to release you into the community. You should be encouraged, Mr Campbell, to take part in those rehabilitation programmes. 

And so, once again, a court has sought to reclaim its ability to tailor sentences to the individual circumstances of the offender in order to avoid outcomes that fly in the face of basic common sense. Unless, of course, people like Mr Casey were "the worst of the worst" that we were told the three strikes regime would protect us (but not, apparently, prison staff) from - and we ought to spend some $700,000 in doing so.


[1] Harrison and Turner at ¶ 78.

[2] Id. at ¶ 83.

[3] Id. at ¶ 119.

Comments (19)

by Charlie on November 24, 2016

Judges have the luxury of living in expensive suburbs and have extensive security. When sentencing they should consider the people who live next door to the feral animal they're setting free.



by Alan Johnstone on November 24, 2016
Alan Johnstone

If judges abuse the discretion granted to them by the act, then I'm sure they'll find another one heading their way without any wiggle room.

It's the perfect political topic for someone seeking votes from our fast growing Asian population to run with.  

by Andrew Geddis on November 24, 2016
Andrew Geddis

@Charlie and Alan,

Just so we're clear, you think Mr Casey should be locked up for seven years without any chance of being released?

by Antoine on November 25, 2016

I support the intent of 3 strikes but agree that the full term would have been unreasonable in this case.

I suggest that Parliament should amend 3 strikes to:

- remove sexual assault and perhaps other offenses from the list, but

- remove the 'manifestly unjust' clause.


by Kyle Matthews on November 25, 2016
Kyle Matthews

Gee... never read the comments. Did they read the blog post?

by Antoine on November 25, 2016




by Alan Johnstone on November 25, 2016
Alan Johnstone

@Andrew, I think that "manifestly unjust" should be a high bar to reach, used in exceptional circumstances only.

Mr Casey may meet that, I don't have the full background to his case to be sure, however a ruling of "manifestly unjust" should be very much the exception.

Judges shouldn't frustrate the will of parliament 

by Moz on November 25, 2016

Judges shouldn't frustrate the will of parliament

I think this is entirely wrong. A significant part of judges' job is exactly to frustrate parliament. That is why we have a constitution and a judiciary to enforce it. Parliament is absolutely free to make unconstitutional laws, and laws which offend higher powers than even the constitution. Those laws should be, and often are, struck down for those exact reasons. They can legislate that pi=3, that repeat offenders can never be set free, that Maori can't own land... and those laws violate the constraints that parliament operates under, so should be struck down.

by Moz on November 25, 2016

"three strikes" laws should, in my opinion, be held invalid. They are basically parliament saying "we have no idea what the separation of powers is, or what we're supposed to be doing, so we listen to talkback radio and do what it tells us to". The correct response in that situation is to resign from parliament and let someone more competent have a go.

I understand this to be like the gap between the board of directors and the executives in a company. The board make policy, the executives... execute it. Policy is deliberately non-specific, it's supposed to be general rules and guidelines that are then tailored to specific situations. Parliament does much the same thing "drive on the left", "pay tax", "don't be a dick" (oh, we wish). Judges say "you drove on the wrong. Pay ye the fine" (my grasp of legal jargon may not be exact).

by Antoine on November 25, 2016

@Moz - that's a strange view.

It is absolutely the legislature's role to make statutes, which includes providing direction on sentencing. See for just one example, the Land Transport (Offences and Penalties) Regulations 1999.

It would absolutely be against the separation of powers if Parliament sought to weigh in on a specific individual case that was before the courts, but that is not what is happening here.

The relationship between legislature and courts is not at all the same as that between board and management.



by BeShakey on November 25, 2016

                Judges shouldn't frustrate the will of parliament

To be clear, the judges aren't frustrating the will of parliament. Parliament passed the bill with a manifestly unjust clause. Parliament also passed the Bill of Rights Act. If judges were to ignore the BORA and what it means for the sentencing decision, then they'd be frustrating the will of parliament.

On a side note, it'd be interesting to know whether the current leader of the Act party thinks this is $200k to $600k of taxpayers money well spent.

by Ross on November 25, 2016

Raven Campbell will serve a couple of years and no doubt will be suitably chastened that he will never commit another crime again. Awesome.

Alas his victim felt degraded and needed time off work. Pfft. She obviously needs to harden up.

by Ross on November 25, 2016

you think Mr Casey should be locked up for seven years without any chance of being released?

Don't worry, Andrew, Mr Casey will have plenty of opportunities to re-offend and serve his seven years.

by Dennis Horne on November 26, 2016
Dennis Horne

Andrew, had judges not been imposing sentences, or perhaps awarding is a better description, that so incensed the public,  3S would never have emerged from the forge in the shape it has.

Leaving aside the absurdity of having females guarding men, young Raven is clearly a birdbrain who needs a bit of discipline and time to learn actions have consequences. 

Looks to me like 3S is working perfectly -- harsh with the chance of parole if he behaves himself better in future.

by Nick Gibbs on November 27, 2016
Nick Gibbs

I read through Warren Brookbanks' lecture and found my worldview collided with his where he states most 1st strikes were issued for sexual assault, serious assault, and robbery/aggravated robbery. He explained that the worst-of-the-worst (murderers, attempted murderers and manslaughterers only accounted for 2.9% of first strikes.  So we were catching a lot of people in the net who shouldn't be there. 

Not so I say. Serious assault can be a life shattering event health-wise. But the sentence passed by the judge is automatically cut in half and then reduced by a third for parole. In other words you can still be going through rehabilitation and in very reduced circumstances while your attacker has completed his time and is back out on the streets.

This is where  3 strikes comes in. Its a warning to those who commit these offences (that Brookbanks refuses to take seriously) to mend their ways. Yes someone will go to prison for some serious time, yes the judiciary will think that's batshit crazy. But we are probably all a bit safer. 

by Megan Pledger on November 27, 2016
Megan Pledger

 Nick Gibbs said

This is where  3 strikes comes in. Its a warning to those who commit these offences (that Brookbanks refuses to take seriously) to mend their ways. Yes someone will go to prison for some serious time, yes the judiciary will think that's batshit crazy. But we are probably all a bit safer. 


And poorer - it costs a lot of money to keep a person in prison and build new prisons.  And it doesn't make sense to keep them in prison for an arbitrary and excessive amount of time if they are rehabilitated and can return to society and be productive.   Keeping them in for long amounts of time just makes people less likely to be able to fit into society when they return especially if they feel hard done by.

It was a dumb Republican law, mainly used to ramp us the prison population for the purpose of profit,  that National jumped on to make them look tough on crime.   It has a catchy title but policy shouldn't be chosen because of catchy titles and  political posturing  - policy should be based on evidence of what works.


by Ross on November 27, 2016

it doesn't make sense to keep them in prison for an arbitrary and excessive amount of time if they are rehabilitated and can return to society and be productive.

But can they be rehabiliated? It'd be nice to think that William Bell and Graeme Bell could be reformed but that doesn't seem realistic. In the meantime, if they're not reformed and are released, one or more people die.

by Ross on November 27, 2016

*Graeme Burton

by Megan Pledger on November 28, 2016
Megan Pledger

But that is exactly the point of parole hearings - to see if people can be rehabilitated and if they can not be rehabilitated then preventive detention comes into play.  But these are based on the circumstances of people, they are not arbitrary as the three strikes law is.


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