Submission: Three Strikes Legislation Repeal Bill

About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties is a voluntary, not-for-profit organization which advocates to promote human rights and maintain civil liberties.

2. We wish to make an oral submission before the Committee.

Introduction

3. The Council supports the Three Strikes Legislation Repeal Bill subject to amendments enabling re-sentencing and compensation for prisoners found to have been detained for an unjust duration. The Council notes that Cabinet explicitly directed the Minister of Justice to invite the Select Committee to consider the issues around ‘transitional arrangements’.

4. In 2009 the Council made a submission to the Law and Order Select Committee on the Sentencing and Parole Reform Bill, and recommended that the Bill not proceed because its provisions were inconsistent with the New Zealand Bill of Rights Act 1990.

5. The Council’s 2009 submission also noted that the Attorney-General concluded in his Interim Report that the proposed regime raised an apparent inconsistency with the Bill of Rights Act as the regime may result in disparities between offenders that are not rationally based. The Attorney-General also considered that the regime may result in gross disproportionality in sentencing. The Council agreed with that perspective.

6. Sadly, our submission, together with comparable submissions from other organisations, gained no traction at that time, and the concerns then expressed have since materialised and have led ultimately to the introduction of this Bill. The Council notes that the general policy statement in the Departmental Disclosure Statement accompanying the Bill states that the mandatory sentencing regime by the legislation “has resulted in unjust outcomes that impact Māori disproportionately”.

Comment on Legislation

7. The Council supports the main provisions of the Bill, which repeal the ‘three strikes’ provisions from the Sentencing Act 2002 and deal with consequential amendments.

‘Transitional arrangements’

8. The Council is dismayed by the fundamental disconnection between the Minister of Justice’s acknowledgement in his Cabinet paper on the Bill of “excessive and disproportionate” punishment inflicted on people sentenced under the three strikes provisions, and the new Part 4 to Schedule 1AA of the Sentencing Act 2002 that clause 10 of the Bill inserts.

9. Paragraph 18 of the Cabinet paper notes that the three strikes law “has attracted severe criticism for excessive and disproportionate punishment in many cases. The Court of Appeal has found sentences imposed under the regime contravene the New Zealand Bill of Rights Act 1990.”

10. It is notable that the courts’ criticism of sentences imposed under the regime come in spite of the fact that section 86D(3) of the Sentencing Act enabled judges to ensure that parole was accessible to the convicted offender if “the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order [that the sentence be without the possibility of parole].”

11. In other words, the outcome of the three strikes provisions have been “excessive and disproportionate” punishment, in spite of a provision designed to avoid non-parole sentences that would be “manifestly unjust”. In his first reading speech to the House when introducing this Bill, the Minister of Justice described these sentences as “perverse outcomes”.

12. Another way of describing disproportionate punishment for a crime is to say that there has been a miscarriage of justice. In spite of the Cabinet paper tacitly admitting that there have been miscarriages of justice because of “excessive and disproportionate” sentences and “perverse outcomes”, the Government has chosen to insert the new Part 4 to Schedule 1AA of the Sentencing Act 2002, which:
    • rules out re-sentencing of a person convicted and sentenced to a stage-2 or stage-3 offence; and
    • rules out compensation of any kind for people charged, prosecuted, convicted or sentenced under the provisions introduced by the three strikes law.

Re-sentencing

13. Clause 13 of the new Part 4 added to Schedule 1AA states that a person convicted and sentenced for a stage-2 or stage-3 offence “is not eligible for release or re-sentencing as a consequence of any provision brought into force” by this Bill. It also has the effect of ruling out reducing the duration that a person was sentenced to by changing when the person will become eligible for parole.

14. As noted in the introduction to this submission, the Cabinet explicitly directed the Minister of Justice to invite the Select Committee to consider the options around this issue. Having read the Hansard for the Bill’s first reading, it is difficult to discern the Minister making this invitation in his speech to the House.

15. This is important, because in spite of the fervour with which the Minister told the House in his first reading speech that “no one will have their sentences reconsidered”, Cabinet considered various options for ‘transitional arrangements’ and the Minister told Cabinet that “The decision of whether to provide transitional arrangements is finely balanced between addressing poor sentencing outcomes and minimising the potential impacts on victims.”

16. The Council strongly urges Members of the Select Committee to read paragraphs 7-9 and 23-35 of the Cabinet paper, which set out in detail the three options considered:
    • No transitional arrangements (the option adopted in the Bill)
    • Reinstating parole eligibility – the Minister said (paragraph 30) that this “would be more consistent with the Bill of Rights Act”
    • Re-sentencing based on seriousness of offending – which the Minister said (paragraph 35) the High Court “has indicated it would be able to accommodate”.

17. The Council also draws the Committee’s attention to page 9 of the Ministry of Justice’s Regulatory Impact Assessment, where the Ministry says that:

“as one of the central grounds for repeal is that the regime is unjust in principle, the proposed approach is to create transitional provisions that mitigate the adverse effects of the regime on those who are currently serving sentences of imprisonment. Such an approach is consistent with the principle that legislation can be applied retrospectively if it is entirely to the benefit of those affected, in accordance with the Legislation Design and Advisory Committee’s guidelines on retrospective laws.”¹‘Impact Summary: Repeal of the three strikes law’, Ministry of Justice, 4 March 2021. Available from: https://www.justice.govt.nz/assets/Documents/Publications/2-RIA-Repeal-of-three-strikes-law.pdf

18. Given the clear advice from the Ministry of Justice officials on the implications of the Government’s view that repeal is needed because the current regime is ‘unjust in principle’, the Council is dismayed by the Cabinet’s decision not to follow through on its principles and to depart from the advice of officials. It is entirely unclear from the Cabinet minute why this is the case, so we are left to surmise that it is an issue of political courage and leadership.

19. The Committee will understandably be concerned by the potential impact on the victims of the original offending that options 2 and 3 might create. The Council draws the Committee’s attention to paragraph 40 of the Minister of Justice’s Cabinet paper which states:

“If Cabinet decides to progress with transitional arrangements, there will be additional stress for some victims associated with Parole Board consideration or re-sentencing. This risk would be mitigated by the fact that the Parole Board or judge will be able to refer back to any previous victim impact statements, so victims will not need to submit again if they choose not to. Victims may choose to participate during any parole hearings or re-sentencings in accordance with their statutory rights.”

20. The Minister has spelled out options for addressing the miscarriages of justice through re-sentencing and parole, and how the impact on victims could be mitigated, but the Cabinet has decided against such measures. The conclusion that the Council must draw from this is that the Government cares more about the politics of not being seen to be ‘soft on crime’ than it does about providing redress to the people who have suffered what the Minister has called “perverse outcomes” and “excessive and disproportionate sentences” that are not consistent with the Bill of Rights Act. In its determination to avoid an accusation of ‘softness’ a Government with a majority in the House is abdicating leadership and is morally comfortable with perpetuating injustices against people it knows have been subject to significant unfairness by the state. Given the attention paid in the Cabinet paper and the Regulatory Impact Assessment to the effect of the three strikes provisions on Māori, the Council also wonders how sincere the Government’s commitment to rectifying injustices under te Tiriti really is.

21. The Council recommends amendment of clause 13 of the new Part 4 of Schedule 1AA to the Sentencing Act 2002, so that it enables existing three-strikes sentences for those currently serving such a sentence to be reassessed in the High Court and either commuted or a replacement sentence imposed. This practical step enables and facilitates efficient and effective resolution of all existing three-strikes sentences at the judges’ discretion.

Compensation

22. Clause 15 of the new Part 4 of Schedule 1AA expressly rules out any entitlement to compensation relating to the impacts of the three strikes law.

23. No alternative options were put to Cabinet by the Minister of Justice on this issue, which is considered in paragraphs 43-45 of the Cabinet paper. The Minister’s reasoning for denying compensation to those who have suffered “perverse outcomes” of “excessive and disproportionate sentences” that were not consistent with the Bill of Rights Act, is that:
    • Compensation would go beyond the purpose of repealing the three strikes law, which the Government has decided is only to prevent further negative effects in future; and
    • “There is no general principle that a person who is sentenced under a repealed law is entitled to compensation on repeal. Where a person has been wrongfully sentenced, there are existing avenues to appeal and seek compensation. In this instance, there is no suggestion that the sentences were wrongfully imposed as they were in accordance with the law at the time.”

24. The Council believes these are shoddy and weak arguments against enabling people who have been unjustly sentenced from seeking compensation. The only example cited by the Minister in his Cabinet paper is that “This is the approach that was taken in the Criminal Records (Expungement of Historical Homosexual Offences) Act 2018.” However, there is a clear difference in the practical difficulties facing the government and the courts between assessing harms and proportionate compensation for convictions that are at least 35 years old (the relevant offences were repealed in 1986) and harms and compensation for convictions in the last 11 years since the Sentencing and Parole Act was passed.

25. The Council notes from an article in the Dominion Post on 4 January 2022 that the largest single compensation payment to a prisoner over the last five years was in 2018/19, when one prisoner was awarded $108,000 for a Bill of Rights Act breach, and that the smallest compensation payment to a prisoner in the same period was $500, also for a Bill of Rights Act breach.

26. The Cabinet paper and Regulatory Impact Assessment do not provide figures for the total number of people who have been affected unjustly by the three strikes provisions. However, paragraph 27 of the June 2021 Cabinet paper says that at that time there were 238 people serving sentences under the relevant provisions (220 second strike offenders and 18 third strike offenders).

27. In terms of the potential financial implications of compensation awards, if we take the $108,000 award for a NZBORA breach from 2018/19 as the maximum, and assume only that all 238 people currently serving sentences are eligible for the maximum, this results in a total cost of $25.7 million. However, this seems unlikely, and would in any case be offset against the RIA’s estimated savings of $1.92 million from prison places of $12,000 per year that the Bill will avoid by 2032,

28. Just as the Government seems to have a deep-seated political reluctance to follow through on correcting the principle of manifestly unfair sentencing by including transitional sentencing arrangements, so it seems to be motivated by fear in refusing to make compensation of any kind. If it is right to compensate people for wrongful imprisonment when they have been wrongfully convicted, why is it not the right thing to do to compensate people for unjustly long imprisonment as a result of provisions the Minister of Justice has described as both “ugly” and “bad”?

29. The Council recommends that clause 15 of the proposed Part 4 to Schedule 1AA of the Sentencing Act is amended to make provision for compensating every person whose three-strike sentence was manifestly unjust.

Summary of Recommendations

30. The Council recommends passing the Three Strikes Legislation Repeal Bill.

31. The Council recommends amendment of clause 13 of the new Part 4 of Schedule 1AA to the Sentencing Act 2002, so that it enables existing three-strikes sentences for those currently serving such a sentence to be reassessed in the High Court and either be commuted or a replacement sentence imposed.

32. The Council recommends that clause 15 of the proposed Part 4 to Schedule 1AA of the Sentencing Act is amended to make a provision for compensating every person whose three-strike sentence was manifestly unjust.

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  ‘Impact Summary: Repeal of the three strikes law’, Ministry of Justice, 4 March 2021. Available from: https://www.justice.govt.nz/assets/Documents/Publications/2-RIA-Repeal-of-three-strikes-law.pdf