Wednesday, January 20, 2010

Three strikes

Yesterday the government announced that it had come to a deal with the ACT Party on its "three strikes" policy:

Under the regime, an offender will receive a standard sentence and warning for the first serious offence. For the second offence they will get a jail term (in most cases) with no parole and a further warning. On conviction for their third serious offence, the offender will receive the maximum penalty in prison for that offence with no parole.
On the face of it, this is weaker than the original bill, which proposed a mandatory sentence of life imprisonment with a 25-year non-parole period for a third specified violent offence. But it strengthens the regime at the other end, by removing the requirement that the offender actually receive a sentence of five or more years imprisonment in order to qualify for a "strike"; now, merely committing the offence, regardless of the actual degree of offending, will qualify. The result is that minor offences, even those which have been "clean slated", could attract a severe and disproportionate penalty later on (alternatively, people who have served their time could face a prolonged sentence later on for minor offending).

When the bill was initially introduced, the Attorney-General reported to the House [PDF] that it was inconsistent with the BORA ban on disproportionately severe treatment or punishment:

Absent manifest injustice [which is a very high threshold - I/S], the sentencing court is obliged to impose a sentence on a qualifying offender that may be significantly more severe than that imposed on a more culpable, but non-qualifying, offender. As a result, the scheme does not ensure a consistently rational connection between the offence and the penalty.
While the maximum third-strike penalty has been reduced, this still applies. If passed, this bill will see offenders subjected to disproportionate sentences which bear no relation to their actual degree of culpability. And that is simply wrong. People should serve the sentence for the crime they have committed, not serve an extra sentence for a crime they have already been punished for.

[More from Graeme Edgeler here]