The courts really, really don't like the "three strikes" sentencing regime. And they're doing what they can to avoid having it force them into actions they think are wholly disproportionate.
New Zealand has had a "three strikes" sentencing regime in place for some six years now. It was controversial when introduced. It's effectiveness is the subject of some debate (I urge people to read Warren Brookbanks' excellent Greg King Memorial Lecture Paper here). But what is indisputable, I think, is that the judiciary really, really doesn't like it.
At the risk of oversimplifying, the three strikes regime works like this. There are a set list of qualifying "strike offences". If you are sentenced for one of these ("first strike"), you get a warning only (on top of the normal sentence for your actions). If you subsequently are sentenced for another ("second strike"), you get a final warning and must serve any jail time for your actions in full (i.e. you get the normal sentence for your actions, but no chance of parole from it). If you then get a "third strike" sentence, you must get the maximum sentence for your actions and serve it in full (i.e. whatever the offence, you must get the longest possible jail term and no change of parole from it). However, there is an escape clause for second-and-third strike offences, in that if it would be "manifestly unjust" not to allow for the chance of parole, the court still can allow it.
Why does the judiciary not like this regime? After all, it would seem to make their job a lot easier - just plug in the numbers and get the sentencing outcome automatically! Job done and on the golf course by lunch!!
Well, as I wrote in a post back in February of last year:
criminal sentencing is a bloody complicated thing to do. It involves trying to achieve a whole number of social ends, some of which point in opposite directions. Judges are required to follow a set of principles, including that they "must impose the least restrictive outcome that is appropriate in the circumstances". In setting a sentence, they have to consider a wide variety of aggravating and mitigating factors. The whole point of which is that a judge is trying to fit an appropriate response to criminal wrongdoing to the particular individual who has committed the act.
In the midst of this punchbowl of flavours, the mandatory requirements of the three strikes regime floats like a great big turd. To simplify a bit, it tells judges not to look at anything except the fact that the offender has done other bad things in the past. If they have done those bad things, then the consequences are meant to be all but set in stone.
For this reason, judges have been very, very reluctant to apply the three strikes regime to send people to jail for very lengthy periods (including up to the rest of their lives, for some offences) without having any chance of parole at all. For example, in every one of the five "second strike" cases of murder to come before the courts, the sentencing judges have found it would be "manifestly unjust" in the particular circumstances to impose a sentence of life-without-parole.
That approach was affirmed back in August by a unanimous 5 member Court of Appeal, in a case called R v Harrison and Turner. As my colleague Marcelo Rodriguez Ferrere has explained:
The Court of Appeal noted that in addition to the three strikes regime, Parliament also had enacted the NZBORA, section 9 prohibition against “disproportionately severe treatment or punishment”. Given the Court’s task to assess “legislative intention in the light of its text and purpose, having regard to the statutory context”, the Court held that:
in some cases this may require the court to endeavour to reconcile any tensions arising from the wording. Here the court must seek to resolve the tension that exists between Parliament’s right to determine a sentence for a particular offence and the constitutional right of citizens to be free from disproportionately severe punishment.
It resolved this tension by assuming “that Parliament, in introducing the new sentencing regime for repeated serious violent offending, intended that any sentence imposed on an offender should not be grossly disproportionate to the circumstances of the offending and the offender contrary to s[ection] 9.” Accordingly, the Court’s “approach to the interpretation of ‘manifest injustice’ is intended to ensure [the statutory provision] is interpreted sufficiently broadly to avoid inconsistency with the Bill of Rights Act altogether.”
The Court therefore concluded that the application of the "manifestly unjust" test:
requires an intensely factual consideration of the circumstances of the offending and the offender, including: the sentence that would otherwise be appropriate for this offending, the consequences of a whole of life sentence, the actual culpability of the offending and the risk posed by the offender. Ultimately, the judicial approach to the scope of the manifestly unjust exception is intended to avoid wholly disproportionate sentencing outcomes.
And applying that "manifestly unjust" test to the two individuals before it, the Court concluded that in both cases it would be grossly disproportionate to send them to jail for the rest of their lives without any hope at all of ever being released. So it instead confirmed an "ordinary" life sentence with a minimum non-parole period for each - meaning that they must serve that time in jail before they can even try to convince the parole board that they are safe to be released. But if they can then convince the board, then they will be able to be released.
Of course, this test does leave open the possibility that it would not be manifestly unjust (i.e. "wholly disproportionate") to impose a life-without-parole sentence for some second-strike murder in the future. But the point is that the circumstances of the offence and offender would have to present a compelling case for such a draconian punishment, rather than the mere fact that the offender has committed some other crime in the past (which is what the "three strikes" policy was meant to respond to). It is, in other words, still a judicial decision rather than an automatically applied outcome.
And now we have a similar approach being taken in what is (I believe) the first "third strike" case to come before a New Zealand court. It involves one Raven Casey Campbell, a now 25 year old man. By the age of 22, Casey racked up two separate "strike offences" - robbery and aggravated robbery. He was then serving his sentence for the second strike offence when this occurred:
A female Corrections officer was standing in a doorway supervising prisoners in the kit locker, where prisoners exchange their clothing, towels and bedding for fresh items. Standing behind the Corrections officer, [Casey] grabbed her right buttock, squeezed it quite hard, and held on for about 1 to 2 seconds.
[Casey was] told to go to the guard room but ... did not make any attempt to move. When the Corrections officer went to leave the yard through a set of steel gates, [he] followed her, grabbed the gate, and asked the Corrections officer if [he] could talk to her. [Casey was] told to move [his] hand so the Corrections officer could leave and [he] did so. The Corrections officer was not injured but she suffered stress and has been off work.
The issue is that Casey's action constitutes indecent assault (as he admitted when he plead guilty to the charge). And indecent assault is a "strike offence". And as this would be Casey's third strike offence, that would mean he has to be sentenced to the longest term available for such actions without any chance of parole - which for indecent assault would mean seven years in prison before being released.
So here, again, is the challenge for the sentencing judge, Toogood J. Must Mr Casey stay in jail for a mandatory seven years with no chance of release for actions which - without seeking to downplay them - were at the lesser end of the offending range and would not attract anything like such a sentence had he not done certain bad things in the past?
Well, under the legislation, Toogood J had no option but to impose the full seven year sentence. The law allows for no discretion at all in this respect. That's not to say that he was happy to do so:
I agree that is very harsh given that what you did was not the most serious assault of its type, but Parliament has determined that your history of violent offending requires a very stern response to protect the public from you and to act as a deterrent to you and others. It may seem very surprising that this consequence could be required by law for an offence of this kind, but that is the law and I have no option but to enforce it.
When reading this, it helps to keep in mind that "very surprising" is judicial code for "bat shit crazy". And so, when it came to the question of whether that seven year sentence should be served with or without the chance of parole - an issue that judges do have discretion over under the three strikes regime - Toogood J was having none of it:
At the age of 25 you are still relatively young and you do not have a long list of previous convictions. None of your previous convictions relate to sexual offending. You pleaded guilty and I am satisfied you are genuinely remorseful. Having no prospect of parole would not encourage you to take steps to change your behaviour and to engage in rehabilitative programmes while in prison as you have said you are willing to do. In that regard, I also take the victim’s sympathetic views into account.
Having considered all of these factors, particularly the nature of the offence and your prior offending; the early plea; your remorse and insight, and your rehabilitation prospects, I have no doubt that requiring you to serve a full sentence of seven years’ imprisonment without parole would be a grossly disproportionate outcome. After you have served one third of the sentence, it will be a matter for the Parole Board to determine whether and when it is safe to release you into the community. You should be encouraged, Mr Campbell, to take part in those rehabilitation programmes.
And so, once again, a court has sought to reclaim its ability to tailor sentences to the individual circumstances of the offender in order to avoid outcomes that fly in the face of basic common sense. Unless, of course, people like Mr Casey were "the worst of the worst" that we were told the three strikes regime would protect us (but not, apparently, prison staff) from - and we ought to spend some $700,000 in doing so.
 Harrison and Turner at ¶ 78.
 Id. at ¶ 83.
 Id. at ¶ 119.