Marie Taylor-Cyphers, an experienced defence barrister with expertise across criminal, white-collar, and organised crime, shares her sharp insights on how the latest sentencing reforms in New Zealand are reshaping the courtroom landscape, particularly around the Three Strikes regime, guilty plea incentives, and young offenders.
1. As someone who has defended clients across the full spectrum of criminal charges, what’s your take on how the reinstated Three Strikes regime is likely to influence plea strategy in serious indictable cases?
There is a sharpened focus on all counsel given the heightened risk to liberty: on prosecution, to charge fairly and accurately on the evidence; on defence to advise early and negotiate robustly. The burden is on both parties to ensure the level of charge is correct, and that needs to be at the forefront of our consideration in these cases.
Where the maximum penalty is life imprisonment, I do not anticipate there will be a discernible difference in the number of guilty pleas or the timeliness of plea. This is because the stakes are already high in these cases, and mercifully there are a small number of recidivists in this category.
In cases of serious and sexual violence (now including strangulation) there may be a risk a greater proportion of recidivist defendants will roll the dice and take matters to trial, and / or reoffend while awaiting trial. This is because people can feel they have nothing to lose when they are staring down the barrel of the maximum penalty. This may be an unintended consequence that needs to be measured carefully to assess whether the regime is having the desired consequence of reducing crime.
2. How do you see the new sliding scale for early guilty pleas impacting defence strategy—particularly when disclosure or psychological assessments are delayed?
I am optimistically sceptical this will make a material difference in sentencing outcomes.
I await the approach of sentencing judges to see whether this increases overall sentences when consistency with authorities could and should (in my view) prevent it from doing so.
3. With the emphasis now on limiting sentencing discretion and capping discounts, what practical advice would you offer junior barristers trying to build strong submissions on mitigation?
This is not simply a mandate to impose harsher sentences – despite what the media would have us believe.
Capped discounts cannot extinguish years of authorities indicating sentencing ranges (including guideline decisions), nor do they override the requirement under the Sentencing Act for to apply consistency (in sentencing similar offenders who commit similar offences in similar circumstances – s 8(1)(e)).
I expect there to be some creative responses to sentencing methodology and I encourage all counsel to vigorously test this!
4. How are you approaching the sentencing of young offenders post-reform, given the stricter thresholds and reduced room for negotiation—even in the presence of trauma or neurodevelopmental concerns?
Youth remains a mitigating factor in the Sentencing Act (s 8(g)). The NZBORA reminds us a child should be dealt with in a manner that takes account of age, and, there remains the right not to be subject to disproportionately severe punishment (ss 25(i), 9).
Youth discounts generally range from 10% - 30% in the authorities. Again, the amendments do not wipe years of case law and we should be inviting sentences that remain consistent with that in my view
This only applies at sentencing, however. Whether there are steps to be taken for “serious” young offenders before that point is a question all of us involved in youth justice need to ask, in every case.
5. You have a strong background in white-collar and organised crime defence. How do these reforms change the calculus when advising clients charged with complex financial or drug offences?
These files have always been regarded by perpetrators as high risk high reward. Heavier penalties in my experience are not something a person contemplates when commencing a pathway leading to criminal offending; even when the potential penalty is high, the reward of several million dollars is equally so.
I do not consider the amendments are likely to alter this particular cost-benefit analysis, but would love to be proven wrong.
Hear more from Marie Taylor-Cyphers at our upcoming seminar: Legal Alert! Sentencing Reform 2025: What it Means for Practice, click to register for the seminar.
