The ADLS Criminal Law Committee has appeared before the Justice Select Committee to make oral submissions on the Three Strikes Legislation Repeal Bill which, if passed, will repeal the Sentence and Parole Reform Act 2010.

The ADLS committee strongly supports the repeal of the three-strikes regime. ADLS President Marie Dyhrberg QC and Hannah Hellyer, a barrister specialising in criminal and parole law, last week told the select committee the regime results in disproportionate and unjust punishment by removing judicial discretion in sentencing and determining parole eligibility, thereby contradicting several fundamental sentencing principles and inalienable individual rights.

Nor does the regime allow for a fundamental purpose of imprisonment – to provide access to timely and adequate rehabilitative treatment and reintegrative opportunities while the offender is monitored and supported by Corrections. This is the only effective response to stop serious offending, Hellyer told the select committee.

The ADLS committee also strongly supports including transitional arrangements for those currently serving a sentence of imprisonment under the regime.

The fallacious belief that three-strikes serves as a deterrent has led to unjustified and sometimes absurd sentences. The regime has not stopped serious offending, the committee says. The only fair legislative response is for those affected to be placed in the position they would have been in but for the regime.

In accordance with Legislation Design and Advisory Committee’s Guidelines on Retrospective Laws, Dyhrberg and Hellyer submitted that implementing transitional arrangements is consistent with the principle that legislation can be applied retrospectively if it is entirely to the benefit of those affected.

In summary, they said, these arrangements would mean second-strike offenders sentenced to a term of imprisonment of less than two years would automatically be released after serving 50% of their sentence. Second-strike offenders sentenced to a term of imprisonment of more than two years would be considered for parole after serving one-third of their sentence. The remaining second and third-strike offenders should be re-sentenced, and this should include the determination of a minimum term of imprisonment.

Arena Williams, Labour MP for Manurewa, agreed with Hellyer’s submission that New Zealand should not have implemented the regime in the first place. However, she was interested in how the courts and Parliament should make reasonable decisions about things like re-sentencing when this legislation was lawful at the time the sentence was passed.

Hellyer again pointed to the principle that legislation can be applied retrospectively if it is entirely to the benefit of those affected. Re-sentencing would be a simple process as the High Court could access the submissions filed on sentence and the judge’s sentencing notes, including information on what the sentence would have been but for the regime.

ACT list MP Nicole McKee wanted to flesh out the ADLS committee’s thoughts on retrospective sentencing in relation to more heinous criminals and how we might keep the community safe if those offenders were released from jail earlier.

Hellyer said there was no reason to believe the court would impose a lenient sentence. For serious or recidivist offenders, other serious sentencing options are available. But under the three-strikes regime, the court cannot apply its nuanced analysis of the offender to determine what sentence is most appropriate.

Hellyer also noted that offenders are released on parole only when the Parole Board is satisfied they do not pose an undue risk to the community. In her experience, the board does not easily grant parole.

Furthermore, if parole eligibility is reinstated, the board, through subsequent parole hearings, can monitor the individual’s progression through his/her sentence and ensure they are accessing the treatment they need.

Vanushi Walters, Labour MP for Upper Harbour, asked whether transitional arrangements have been, or will be, implemented by the overseas jurisdictions which are repealing their equivalent legislation. If so, are those echoed in the transitional arrangements proposed by the committee?

This question requires further research. However, Hellyer referred to the example of the Northern Territory, which is repealing its equivalent legislation, and the United Kingdom, where the courts have worked around the legislation by finding, similarly to the Supreme Court in Fitzgerald, that the UK’s equivalent of s 9 of the Bill of Rights Act 1990 is inalienable.

The Justice Select Committee hearing may be viewed by visiting the following link.

Its report on the bill will be completed by 17 May 2022.