Friday, April 24, 2009


Below is the draft of my submission on the Sentencing and Parole Reform Bill, which I'll be emailing away later this afternoon. It is based on posts here and here.

  1. I oppose the Sentencing and Parole Reform Bill, and ask that it not be passed.
  2. The bill would create a “three strike” regime for repeat violent offenders and allow judges to deny any possibility of parole to those convicted of murder. Both changes violate the rights affirmed in the New Zealand Bill of Rights Act 1990 and our binding commitments to the international community under the International Covenant on Civil and Political Rights (ICCPR). In addition, there are a number of practical difficulties with the bill.

    Bill of Rights Problems

  3. The problems with the proposed “three strikes” regime are well-covered in the Attorney-General’s section 7 report [PDF] tabled in Parliament. The mandatory sentences imposed for second or third strikes are likely to constitute disproportionately severe punishment, in violation of s9 BORA and article 7 of the ICCPR, in that they are likely to be grossly disproportionate to the offence. An offender who commits a crime which would otherwise receive a sentence of five years, would receive a mandatory life sentence with a mandatory 25 year non-parole period if it is their third strike. This is grossly disproportionate, and destroys any pretence of a rational connection between the offence and the punishment.
  4. Official advice has highlighted the risk that such grossly disproportionate sentences provide a strong incentive for offenders to commit more serious offending to avoid arrest. This may result in victims and police being killed. Overseas, three strike regimes have been linked to a 16-24 percent increase in the long-term homicide rate. In New Zealand terms, that works out to an extra ten deaths a year. Members of the committee should ask themselves whether they are willing to be party to ten extra murders a year just to show they are “tough on crime”.
  5. While the Attorney-General’s report disagrees, official advice has also noted that mandatory life-sentences without parole for second-strike murderers may also constitute cruel or disproportionate punishment in violation of the BORA and ICCPR, as they “do not provide for any consideration of a change in the offenders' circumstances”.
  6. Though its recognition of Parliamentary sovereignty in s4, the Bill of Rights Act makes Parliament the ultimate guardian of our human rights in this country. I ask that the committee take that role seriously, and either reject the bill in its entirety, or amend it (if that is possible) to make it consistent with the BORA.

    Practical Problems

  7. In addition to creating incentives on offenders, the bill also creates perverse incentives on judges to reduce sentences to avoid manifest injustice in the future.
  8. It also removes incentives for good behaviour from prisoners subjected to the regime. To point out the blindingly obvious, if there is no hope of release from prison, then there is no incentive to moderate behaviour, let alone reform. This endangers both other prisoners, and prison officers.
  9. These incentives are inherent in the nature of the regime, and cannot be moderated. They are another argument for the bill’s rejection.

    Proposed ACT amendments

  10. The ACT Party has proposed several amendments to the bill, including expanding the list of strike offences and making the law retrospective. I oppose these amendments, and urge the committee to reject them.
  11. ACT propose to expand the list of strike offences [PDF] to include “Assault on a child, or by a male on a female contrary to section 194 of the Crimes Act”. This creates an extremely strong and perverse incentive against the reporting of domestic violence, as victims may not want to see their abuser imprisoned for the rest of their natural life. For this reason, I urge that if the bill proceeds, the committee not expand the list of strike offences to include such offences.
  12. ACT also proposes making the three strikes regime retrospective, and treating those already convicted as having 1, 2 or even 3 strikes already for the purposes of subsequent offences. This comes dangerously close to retrospective punishment, and defeats any pretence that this bill is about improving deterrence. I urge that such amendments also be rejected.
  13. I do not wish to make an oral submission to the Select Committee.