800% more third strikers under the Govt’s changes to toughen Three Strikes 2.0 – but will it make us safer?

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Changes to Three Strikes 2.0 is estimated to add several thousands of first-strikers in the regime’s first 10 years. Photo / 123rf
ANALYSIS
The Government has toughened Three Strikes 2.0 in response to feedback that the initial proposals were too soft.

How much tougher can now be revealed: the Ministry of Justice estimates that 4312 more first-strikers, 649 more second-strikers, and 88 more third-strikers
will be added in the regime’s first 10 years, compared to the estimates for the original proposals (7795 first-strikers, 266 second-strikers, and 11 third-strikers).

In percentage terms, the number of first-strikers would increase by 55%, second-strikers by 244%, and third-strikers by 800%.
This would add between 130 and 210 prisoners after 10 years, compared to the previous estimate of 40 to 100 people.
The annual cost to Corrections after 10 years would be $15.6 million to $25.2m, significantly higher than the previous estimate of $4.8m to $12m.
The changes, announced yesterday, include halving the sentencing threshold for getting a first strike to 12 months’ jail, and making the regime retrospective.
Justice officials previously opposed both of these, initially pushing for a 36-month sentencing threshold for a strike (it remains at 24 months for strikes two and three). The aim is to ensure low-level crimes aren’t strike offences. Cabinet decided to shift the dial on what “low-level” means for strike one.
And officials said a retrospective regime contravened a fundamental justice principle: that you should only suffer penalties that existed at the time of the offending.
The Government will not be concerned about what officials think.
Prime Minister Christopher Luxon will be more interested in what voters think, and these changes will please anyone who ticked the boxes of any of the coalition parties in last year’s election.
The bigger question is whether the hefty price tag is worth it for potentially zero or minimal benefit.
Zero “significant quantifiable benefit”.
That’s how Ministry of Justice officials described Three Strikes 1.0, which ran from 2010 to 2022 and encapsulated about 15,000 first-strikers, 725 second-strikers, and 24 third-strikers.
This seems counter-intuitive. If those offenders and repeat offenders are off the streets, then surely that makes us safer, right? It’s not so simple.
Almost all of them will be back in the community eventually. The length of time they’re behind bars and the time they spend on parole – with the reintegration support that entails – contribute to the likelihood of reoffending. Any social harm saved by putting someone in prison, in other words, could simply be deferred to some time in the future when they’re at large.
Offenders serving all or most of their sentence are five times more likely to be reimprisoned within a year of release than those who serve up to half their sentence and are then paroled, according to Corrections data.
This may not be as relevant to Three Strikes, however. Most strike two-type offenders aren’t paroled when they become eligible, but rather much closer to the end of their sentence. And strike three-type offenders might be so old by the time they’re released that they tend to “age out of criminal activity”, Justice officials said.
Basically, it’s very hard to tell if Three Strikes 1.0 made us safer, and there’s no evidence that it did.
A Justice Ministry evaluation was inconclusive: “It is not clear that the Three Strikes law has increased public or victim safety, and there is no evidence that continuing to limit judicial discretion and availability of rehabilitative opportunities in these cases will aid in reforming offenders or reducing serious crime.”
This doesn’t mean version 2.0 won’t, or can’t, make people safer, but saying that it will is simply crystal ball gazing.
Regardless of whether it improves public safety, the law will send serious repeat offenders to jail for longer. This aligns with the Government’s accountability message behind its law and order agenda.
But it’s also going to cost a lot when the Government has no spare change.
Associate Justice Minister Nicole McKee told the Herald the cost will have to be weighed against the benefit of reduced victimisations. The issue with that equation, as previously stated, is that it’s very hard to determine whether any such reduction is related to Three Strikes.
McKee is walking a fine line by making the law tough enough to please constituents, but not so tough that it will cost the Government hundreds of thousands of dollars in legal appeals and compensation.
That’s what happened with version 1.0, in particular in the case of Daniel Clinton Fitzgerald, who was awarded $450,000 in compensation. He was serving a strike-three sentence that was found to breach the Bill of Rights Act protection against severely disproportionate punishment.
His three separate strike crimes were indecent assaults, the last one for kissing a woman and pushing another woman, both strangers, in the street. The judge in the third-strike case said the offence on its own would not normally warrant a prison sentence, but under Three Strikes he had to sentence Fitzgerald to seven years behind bars.
An appeal landed in the Supreme Court in 2021, which said his sentence went “well beyond excessive punishment and would shock the conscience of properly informed New Zealanders”. The case was returned to the High Court, which imposed six months’ jail. Fitzgerald received compensation because he had already served five years in prison.
None of this would have happened under Three Strikes 2.0 because Fitzgerald would have been strike-free. His first sentence was 11 months’ jail, a month below the 12-month threshold, while both his second- and third-strike sentences were much less than the 24 month-threshold.
Judges will also have version 2.0 guidelines telling them to avoid severely disproportionate sentences. To enable this, they’ll be able to diverge from the mandatory requirements for sentence length and parole eligibility at both the second and third strikes.
Disproportionate punishments, however, will be fair game. This will achieve the Government’s goal of ever-harsher sentences for serious recidivism, though it remains to be seen where the courts will draw the line between the severely and the not-so-severely disproportionate.
It’s very unusual for Cabinet to make substantive changes to a bill partway through a select committee process, and after public submissions have closed. Labour calls this an “appalling process”.
Legal expert Graeme Edgeler said a similar thing happened with Three Strikes 1.0, with changes to the strike thresholds during the select committee process.
“That involved the committee issuing an interim report and contacting relevant submitters (those who had raised the issue in their original submissions) to invite further written submissions.”
He hoped for a similar approach now, though he noted that making changes before the committee reported back at least allowed the committee to consider the changes. This didn’t happen, for example, with the Government’s controversial private home ban on gang patches.
Otago University law professor Andrew Geddis said reopening submissions would allow the committee to consider “some gnarly issues regarding home detention”. Home detention is available to those sentenced to prison for up to 24 months, but should that apply to a first-strike offence where the prison term is between 12 and 24 months?
Asked about reopening submissions, McKee told the Herald: “No, we want to get this through before the end of the year as we promised that we would.”
Only, there’s nothing on the Government’s latest quarterly action plan about passing Three Strikes 2.0 into law by the end of the year.
She later said if the select committee wanted to open submissions, it could, but “they’re under a strict timeline so they probably won’t have enough time to be able to do that”.
The committee is scheduled to report the bill back on December 5.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
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