Three strikes and you’re out, version 2: The new proposed Sentencing and Parole Reform Bill
By Nick Russell, principal, and James Dunne, associate, Chen Palmer New Zealand Public Law Specialists.
On 18 February 2009, the Government introduced the Sentencing and Parole Reform Bill 2009 (Bill) to provide for a United States-style “Three Strikes and You’re Out” sentencing regime for repeat violent offenders. The Bill has been passed through its first reading and is being considered by the Law and Order Select Committee. On 19 January 2010, the Prime Minister and the Leader of the ACT Party, the Honourable Rodney Hide, jointly announced proposed amendments to the Bill.
On the whole, the amendments are refinements which remain consistent with the Government’s policies during the 2008 General Election to remove eligibility for parole for the worst repeat violent offenders, while also adopting the ACT “Three Strikes” election policy.
While the detail of the reforms has yet to be published, the Government’s announcement of the proposed changes sets out a relatively comprehensive outline of the proposed regime:
• The Three Strikes sentencing regime applies to a list of 35 specified offences (defined as “qualifying offences”) up to and including murder, all of which involve the use or threat of serious violence and/or sexual violence. In most cases, the offences have maximum penalties of at least 10 years’ imprisonment.
• Unlike the current Bill (which included life sentences for the third qualifying offence), the proposed regime will not increase maximum penalties for any of these qualifying offences. Maximum penalties will remain as under the current law, but with qualifying persons serving maximum penalties with no prospect of parole (unless that would be manifestly unjust).
• The regime does not apply to offences committed by minors. Although persons under the age of 18 can be convicted of any of the 35 offences referred to, convictions which accrue before the age of 18 years will not be “qualifying offences” for the purposes of the Three Strikes regime.
• The new sentencing regime will not be retrospective. Only offences committed after the proposed policy is enacted will be qualifying offences. This means that even repeat offenders with multiple previous convictions will be considered as only having a “first strike” if they commit a new qualifying offence after the Bill is enacted.
A further feature of the Three Strikes regime is the use of warnings to ensure the offender understands the risk of escalating punishments if he or she commits further offences. At the first conviction, offenders will be warned that they have received a “first strike” and that a further conviction for a qualifying offence will result in a longer term of imprisonment with no prospect of parole. But apart from this warning, the sentence will be no different than at present, and the offender will be entitled to apply for parole in the ordinary way (subject to any non-parole period imposed by the Court under the Sentencing Act 2002).
At the second qualifying offence, the offender will not be entitled to any parole. The Court will still determine the duration of the term of imprisonment (if any) in the ordinary way, but the offender will be required to serve that sentence in its entirety with no prospect of parole. The offender will also receive a further warning at the time of sentencing about the consequences of receiving a third strike.
The third and final strike will require the Court to impose the maximum penalty for the offence without the prospect of parole, subject only to a discretion conferred upon the sentencing judge to impose a lesser sentence if he or she considers it to be “manifestly unjust” to impose the maximum. This means that, unless the Court exercises that discretion, an offender convicted for murder on a “third strike” will have to be sentenced to life imprisonment with no prospect of parole.
Because it is not retrospective, the new sentencing regime will take effect gradually: it is not until offenders are convicted of a second qualifying offence committed after the Bill is enacted that there will be any change in sentences imposed or served. This means there will be a significant opportunity to reflect on how the Bill will affect criminal procedure in New Zealand. From a public law perspective, the most interesting questions concern the exercise of prosecutorial discretion in determining which charges to lay, and the test for determining when it will be “manifestly unjust” to impose a maximum penalty with no prospect of parole.
Prosecutorial discretion
By limiting the Three Strikes sentencing regime to defined offences, the Bill is likely to result in increased scrutiny of prosecutors’ decisions to lay charges. In particular, there is likely to be significant scrutiny or even litigation in circumstances where alleged offenders are charged with second or third qualifying offences in circumstances where a lesser non-qualifying charge might also have been possible. In some cases, of course, prosecutors will have little option as all the potential offences will fall within the Three Strikes regime (for example, both murder and manslaughter are qualifying offences).
But in other circumstances, the question of whether to charge a person with a qualifying offence will be a matter of discretion. To take one example, the offence of causing injury or death while having excess breath alcohol in charge of a motor vehicle under section 61 of the Land Transport Act 1998 is not a qualifying offence, but manslaughter is. Other offences of serious violence appear to have been excluded from the list of qualifying offences because they are obscure or uncommon – one example is acid throwing under section 199 of the Crimes Act 1961, which is punishable by up to 14 years’ imprisonment.
Crown Law’s Prosecution Guidelines, dated 1 January 2010, state at paragraph 9.2 that “the nature and number of the charges laid should truly reflect the totality of the offending disclosed by the facts to be alleged at trial”. But experienced prosecutors can reasonably disagree on the best configuration of charges to “truly reflect the totality of the offending”, and allegations of “over-charging” by Police are not uncommon (See, for example, “Lawyers slam minister’s court-rort claim”, The New Zealand Herald, 18 May 2009). That will become a more difficult assessment once the Bill is enacted.
There is also potential here for prosecutors to put suspects under significant pressure in such cases, and care will need to be taken to ensure that this does not result in suspected offenders being put under pressure to plead guilty to lesser offences so as to avoid the threat of a trial for a second or third qualifying offence. At this stage, there has been no mention of additional safeguards.
The likelihood is that sooner or later this will be challenged by way of judicial review. The High Court confirmed in Polynesian Spa Limited v Osborne [2005] NZAR 408, cited with approval in Wilson v Auckland City Council [2007] NZAR 711, that both a decision to prosecute and a decision not to prosecute can in principle be reviewed.
But the Court will be hesitant to disturb the decision of the prosecuting authority where a decision has been made to prosecute. In part, this is because the merits of such a decision can be assessed at the substantive criminal trial. But there are also constitutional and policy issues at stake. Prosecuting criminal offences is the proper role of the executive, not the courts. A Court will be unwilling to substitute its own decision for that of a prosecutor unless the charges have been laid in bad faith or for a collateral purpose. That standard will be difficult to meet. Justice Randerson noted in Polynesian Spa that no authorities were cited to him in which a decision to prosecute had been successfully reviewed.
When is it manifestly unjust to impose a maximum sentence?
The second interesting issue would be how the Government approaches the task of defining the scope of the Court’s discretion not to impose the maximum penalty for third-strike offenders. That is, whether the amended Bill includes a definition of “manifestly unjust” or whether it is simply left to the sentencing judge to exercise his or her discretion. The statement by the Honourable Judith Collins at the time the policy was announced refers to this as being a matter of judicial discretion, but it remains to be seen how tightly the statute prescribes the scope of that discretion. Again, this is a matter which is likely to be the subject of significant scrutiny, particularly for offenders who receive sentences of life imprisonment on a second or third-strike offence. Such offenders will only be entitled to parole at all if the sentencing judge determines that it would be manifestly unjust for them to serve the rest of their natural life in prison.
All of these factors will no doubt be considered by the Law and Order Select Committee once the amendments to the Bill have been drafted. Collins has announced that the Law and Order Select Committee will be invited to seek further written submissions on the amendments, and to report back by the end of March 2010.