Legalwise News NZ Editor Caroline Tang interviewed Len Andersen, president of the Criminal Bar Association of New Zealand, about why the CBA believes that “New Zealand is one of the most punitive countries in the world” and that the failings of the controversial “three strikes legislation” show why it must be repealed and full judicial discretion restored in sentencing.
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The Sentencing and Parole Reform Act 2010, and specifically, its three-stage mechanism of intensifying the consequences for recidivist violent offenders, has been back in the headlines after the Government failed to win support for its plan to repeal what is commonly known as the “three strikes law”.
What is the Three Strikes Law?
Introduced in 2010, there are 40 “qualifying” offences comprising all major violent and sexual offences with a maximum penalty of seven years or greater imprisonment, including murder, attempted murder, manslaughter, wounding with intent to cause grievous bodily harm, sexual violation, abduction, kidnapping, and aggravated robbery.
According to the law, on conviction of a third qualifying offence, the court must impose the maximum penalty for the offence. The court must also order that the sentence be served without parole, unless the court considers that would be manifestly unjust.
The Criminal Bar Association’s position
Len Andersen, the president of the Criminal Bar Association of New Zealand, (CBA) said the problem with the three strikes law was that it imposed arbitrary sentences, meaning the sentences failed to relate to the culpability of the offender or the seriousness of the offence. Mr Andersen said the law had not achieved its aims of lowering recidivism rates for serious violent crime or, deterring people from committing such offences.
“It is naive to think that a person about to commit a serious violent crime is likely to be deterred by having received a three strikes warning. On the other hand, the arbitrary nature of the three strikes rule means that its effect is not limited to serious violent crime and this is illustrated by the third strike offender who was liable for a maximum sentence of 7 years’ imprisonment with no parole for pinching a prison officer’s bottom,” he said.
More work for lawyers
Despite the three strikes law generating more work for criminal law practitioners, Mr Andersen reiterated the CBA’s steadfast opposition. “It is against the criminal defence lawyers’ economic interests to support its abolition… (but) the law itself should be repealed. The Court has a discretion as to the length of sentence and to fix non-parole periods and there is no need for this to be altered,” he said.
“It is a policy question as to what maximum sentences should be for individual offences and the CBA does not have any opinion on sentences for individual offences, so long as the Judge has the discretion to treat each case on its merits.”
Long-term protection must be the goal
Mr Andersen said the community was only protected from harm while an offender was locked up. “Sooner or later the offender is going to be released and the long-term protection of the community from harm is dependent upon whether that offender can reintegrate into the community without offending,” he said.
“Most offenders have literacy, alcohol and/or drug problems. Good literacy levels are necessary for people to obtain jobs and a degree of literacy seems to be necessary in order to obtain welfare benefits. Increasing literacy levels and dealing with drug and alcohol problems improve an offenders chance of successful reintegration into society.
“Similarly, maintaining family relationships also assists that reintegration and the longer the sentence, the more difficult it is for the offender to maintain family relationships. Many prisoners have mental health issues which are reflected not just in their offending (a defendant claiming voices telling him or her to commit the offence is not uncommon) but also partially explains suicides in prison.”
New Zealand a “punitive” jurisdiction
Mr Andersen said New Zealand was “one of the most punitive countries in the world”. “The high number of prisoners per population makes it clear that our penal and rehabilitation systems are not working,” he said.
“Measures which are implemented overseas which have an effect of reducing crime, such as allowing conjugal visits for prisoners (assisting them to maintain their family relationship) are met in New Zealand with the kneejerk response that the government is getting soft on crime.
“It would take an enormous change in society’s mindset to regard the fact of incarceration as being the punishment and to engage in real efforts to ensure the prisoner can reintegrate into society through treatment of drug and alcohol problems, maintenance of family relationships and preparedness for work (including day release prior to release from prison).”
The argument for the repeal of the law
Mr Andersen outlined the CBA’s arguments for the repeal of the “three strikes law”:
1. It is acknowledged to be an unjust law as the Court only has discretion to interfere if the result is “manifestly unjust” meaning unjust sentences are legal as long as they are not “manifestly unjust”. A civilised society should not intentionally pass laws that will have unjust consequences.
2. It is arbitrary. For example, it imposes the same penalty on a third strike for an indecent assault that constitutes an attempt to kiss as it does for a serious physical indecent assault.
3. The inability of a second strike offender to obtain parole reduces their preparedness for reintegration into society and does not allow implementation of any steps to decrease the chance of him or her offending after release.
4. The third strike insistence on maximum penalty with no parole gives a defendant no incentive to plead guilty and we are starting to see third strike offenders who are advised that the case against them is not able to be defended nevertheless insisting on a trial because they have nothing to lose, thereby requiring victims to give evidence that would not have been required if the offender had an incentive to plead guilty.
5. The most serious offence on the statute books now is a third strike murder. A person convicted of that offence has no hope of release for their natural life. That is more serious than preventive detention where a serious sexual offender does have the opportunity to prove that he or she is rehabilitated. Giving a prisoner an incentive to reform by offering some hope of release assists prison discipline.
Len Andersen is a barrister in Dunedin and also teaches Advocacy at Otago University. He is president of the New Zealand Criminal Bar Association. Len has a general practice including civil, Resource Management and relationship property in addition to criminal work. Len was a barrister and solicitor in Whakatane from 1976 to 1990 and has practiced as a barrister in Dunedin since 1991. Contact Len at president@criminalbar.org.nz
