By Kyle Maxwell

DISCLAIMER: This article was written before the 2023 Election.

Introduction

As election year reaches a crescendo, political parties have once again booted the political football of crime into the centre of the electoral playing field. All major parties have policies on the matter; however, certain policies have drawn more ire than others. The National Party in particular has come out kicking, hammering home the message that they will “get tough on crime”, dealing with allegedly sky-high rates of crime and gang membership by playing the oldest trick in the book: throwing people in jail for longer.

They are proposing three main policies to reduce crime: reinstating three strikes legislation, limiting sentencing discounts to forty per cent of the original starting point and banning the display of gang patches in public. All three policies fly in the face of our Bill of Rights Act to some extent, and three strikes and the forty per cent limit have been called an overstep into the role of the courts by some.

This article explores what these policies are, how effective they are likely to be, and how they clash with the New Zealand Bill of Rights Act (NZBORA).

Three Strikes and 40% Caps on Sentencing Discounts: How They Work

Three strikes and you’re out; that is the heart of three strikes legislation. Each time someone is convicted of qualifying violent or sexual crimes, they receive a “strike”. Qualifying offences range from indecent assault or robbery to murder. When an offender commits a second qualifying offence, they generally must serve out the entirety of their prison sentence without parole. If they commit a third qualifying offence, the offender will receive the maximum penalty for that offence and also usually serve all of it in prison.[1] For example, someone who committed robbery would spend 10 years in prison.[2]

The forty per cent limit on sentencing discounts means judges can decrease sentences by a maximum of forty per cent in the second stage of the sentencing process. Having reached an initial sentence based on the crime itself, at the second stage, a judge will grant discounts based on the offender’s circumstances. For instance, twenty-five per cent discounts are often available for pleading guilty. Remorse or hardship that has caused the offending also commonly receive discounts. Both stages recognise principles and purposes in the Sentencing Act, such as holding the offender accountable, deterring them and others from offending, and rehabilitation.[3]

While three strikes laws are nothing new, having been in force between 2010 and 2022,[4] we are yet to see how exactly a forty per cent cap will function.

Three Strikes and 40% Caps on Sentencing Discounts: Will They Work?

 

Inconclusive. That’s how the Ministry of Justice (MOJ) described evidence on whether three strikes legislation worked.[5] Three strikes legislation has been responsible for sentences that “shock the conscience of New Zealanders”,[6] yet the evidence on whether this programme even works is conflicting.

The right to freedom is one of our proudest and oldest rights, with countless wars fought in its name.[7] Yet, our elected officials will likely curtail that right following the 2023 election based on inconclusive evidence.

Another Cabinet report also found no evidence that continuing to hamper judicial discretion would aid in reforming offenders or reducing serious crime.[8] It was also unclear whether it increased public or victim safety.

Therefore, you would have thought National would have some solid new research to support this policy. Wrong. According to the National Spokesperson for Corrections, Mark Mitchell, the Party has zero projections for whether it will work. The party simply “wouldn't be releasing the policy if they didn't believe in it”.[9]

However, he did claim it addresses the two biggest deterrents of offending: knowing you will be caught and knowing you will be punished if you are.[10] It is unclear how harsher punishment makes criminals more likely to be caught.

As to the second point: in the five years before Parliament first legislated three strikes, there were 16,319 convictions for qualifying offences. Following its enactment, 17,508 convictions for qualifying offences occurred between 2013 and 2017. While serious assaults did decrease, this was a continuation of an existing trend, and in fact the trend reversed briefly in 2014.[11] While there is no conclusive statistical evidence, the signs point towards three strikes legislation being ineffective.

Furthermore, in Xu Wang’s Master’s thesis, they pointed to evidence that the average career length for violent offenders is 9.2 years.[12] Therefore, specific violent offenders would already be at or nearing the end of their career by the time they serve one or two prison sentences anyway.

Both three strikes and a forty per cent limit on sentence discounts also ignore general evidence around what deters offending. Deterrence theory is behind both of these policies. It believes that people are rational, so if the State threatens them with harsher consequences for offending, they will not offend. Deterrence involves weighing the pros of offending against the cons of getting caught. If we give offenders a bigger smack when caught, the cons outweigh the pros — or so the theory goes.[13]

However, decisions to offend are rarely rational. Most people offend impulsively, and even if they do appreciate the consequences, the consequences are discounted as they will occur in the future and are uncertain. Humans are not good at appreciating delayed punishment.[14] Countless studies have borne this out and found that increasing penalties for crimes do not cause a decrease in crime. Even specific individuals who have already offended tend to neglect the possibility of harsh punishment down the line.[15]

Overall, the strength of evidence against both three strikes and deterrence theory generally suggests neither three strikes legislation nor forty per cent caps on sentence discounts will keep us any safer.

Three Strikes and 40% Discount Limits: NZBORA Inconsistencies

The NZBORA enshrines certain rights in statute. Individuals can enforce these rights against public bodies such as government agencies or lawmakers.[16] A peculiarity of the NZBORA is that it is not supreme law, meaning that Parliament can still make laws that override these rights. The courts do not have the power to strike down or invalidate any inconsistent laws.[17] Therefore, they are in a difficult position when Parliament legislates contrary to rights.

In the Supreme Court case of Fitzgerald v R, it was held that Parliament had effectively legislated contrary to the right not to be subjected to disproportionately severe punishment through three strikes laws.[18] Mr Fitzgerald was sentenced to the maximum seven years in prison without parole for non-consensually kissing a stranger in public. This was his third qualifying offence. He had a well-documented history of mental health issues, including schizophrenia.[19] At the time, the sentencing judge admitted this offence was towards the lower end of indecent assault.[20]

The right to be free from disproportionately severe punishment was deemed an absolute right: one that cannot be taken away from at all. One cannot punish someone just a little bit too disproportionately severely, like one cannot torture someone just a little bit. Therefore, it could not be subject to reasonable limits under s 5 of the NZBORA.

However, the difficulty for the Court was that it could not invalidate the law in any way.[21] What the Court could do was follow its powerful interpretive obligation to read the law in a way that was consistent with NZBORA rights if at all possible.[22] The Court found it was possible to effectively add a sentence to the three strikes legislation, reading that maximum sentences were not to be handed down “’where to do so would breach s 9 of the [NZBORA]’”.[23]

The Supreme Court did add an important qualification that s 9 was only breached where the sentence under three strikes would be “’so severe as to shock the national conscience’”.[24]

While it is to be seen how Parliament will legislate a forty per cent cap on sentence discounts, the courts will likely also only cap sentence discounts where it would not be disproportionately severe. This is all the more likely seeing as the Supreme Court found it inconceivable that Parliament would force the courts to breach the NZBORA by handing down unjust sentences.[25]

Banning Gang Patches: How and Whether It Will Work

 

Chief amongst National’s policies to crack down on gangs is a ban on displaying gang patches in public or on social media. However, there have been significant questions about how practical this is.

First, the policy’s success largely depends on what the target is. Mitchell has stated that if we do not see gangs out in public, that is a success. Given recent emphasis on reducing gang recruitment, this seems to be another target.[26]

Once again, this policy is nothing new. In 2011, the Wanganui District Council passed a law effectively banning the display of gang patches in public. Chester Borrows, National MP for Whanganui at the time, has recently said it did not work.[27] This is hardly surprising as of course Police are not going to spend their day arresting gang members and tearing patches from their clothes.

Harry Tam, Mongrel Mob life member and previous senior public servant, suggests it will not slow gang recruitment as it ignores the socio-economic drivers of gang membership. He points to former Prime Minister Robert Muldoon instigating trade training for gang members and helping them into accommodation, providing them with a way forward beyond gang life.[28]

Dr Mayeda, lecturer in sociology at the University of Auckland, also pointed to inequalities such as poor education and relationships with law enforcement as key drivers of gang membership.[29] Banning gang patches does not address these underlying factors, and as such is more likely to just drive gangs underground.

Therefore, it is unlikely the policy will achieve either objective of forcing gangs underground or driving down recruitment numbers.

Banning Gang Patches: NZBORA Inconsistencies

 

Banning gang patches was held to unreasonably infringe upon the s 14 NZBORA right to freedom of expression in the case of Schubert v Wanganui District Council.[30]

Freedom of expression is not an absolute right, so it can be limited when it is reasonable. For example, speech that incites violence is not permissible, so laws criminalising it are not an overstep. Therefore, when Parliament passes a law that limits freedom of expression, it falls to the courts to determine whether that limitation is justified and, if not, whether there is a way that the law can be read that makes it consistent with the right.

In Schubert, Justice Clifford held that banning gang patches was legitimate as it would prevent or reduce the likelihood of intimidation by gang members as well as the chances of inter-gang confrontations.[31] However, the law went too far in completely banning gang patches in public. In Whanganui, the law could be invalidated as the Council went beyond their law-making powers in creating the ban.[32] However, if Parliament itself implemented the ban the courts would not be able to invalidate it, as Parliament is the supreme lawmaker.

Therefore, the courts would once again have to find a way to read the legislation in a way that did not limit the right to freedom of expression more than necessary. This depends on the exact wording of the law; however, it will likely be along the lines of gang patches being banned in public places unless it would unjustly limit the right to freedom of expression.

Overall, enforcement difficulties combined with playing a finely balanced game with fundamental human rights means that Parliament is unlikely to find the Police or the courts particularly willing to enforce this law, so it is unlikely to be successful.

Conclusion

 

Three strikes legislation, stricter sentences and gang patch bans lean more towards breaching fundamental human rights than presenting effective solutions to crime. Unfortunately, crime has once again been subbed into the electoral game in the hopes of a convincing win. The longer this tried and true vote-winning strategy remains, the longer it will be until crime is addressed comprehensively and logically.

[1] Sentencing and Parole Reform Act 2010.

[2] Crimes Act 1961, s 234(2).

[3] Sentencing Act 2002, s 7 and s 8.

[4] Ministry of Justice “Repeal of the three strikes law” (25 August 2022) justice.govt.nz <https://www.justice.govt.nz/justice-sector-policy/key-initiatives/repeal-of-the-three-strikes-law>

[5] Ministry of Justice “Three Strikes Law Evidence Brief” (December 2018) justice.govt.nz <https://www.justice.govt.nz/assets/Three-Strikes-Law-Evidence-Brief.pdf>.

[6] Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [79].

[7] Jonathan Hogeback “6 Wars of Independence” Britannica <https://www.britannica.com/list/6-wars-of-independence>.

[8] Office of the Minister of Justice “Repeal of the three strikes law” at 17.

[9] William Hewett “National's Mark Mitchell says return of the three strikes rule will stop offenders from re-offending” (26 June 2023) Newshub <https://www.newshub.co.nz/home/politics/2023/06/national-s-mark-mitchell-says-return-of-the-three-strikes-rule-will-stop-offenders-from-re-offending.html>.

[10] Hewett, above n 9.

[11] Ministry of Justice, above n 5.

[12] Xu Wang “Three-Strikes Sentencing in New Zealand” (Master of Laws Dissertation, University of Canterbury, 2017).

[13] Donald Ritchie “Does Imprisonment Deter? A Review of the Evidence” (April 2011) at [1] and [2].

[14] Daniel S. Nagin and Greg Pogarsky “Time and Punishment: Delayed Consequences and Criminal Behaviour” (2004) J. Quant. Criminol 295.

[15] Ritchie, above n 13.

[16] New Zealand Bill of Rights Act, s 3.

[17] New Zealand Bill of Rights Act, s 4.

[18] Fitzgerald, above n 6, at 1 (“held”).

[19] At 15.

[20] At 167.

[21] New Zealand Bill of Rights Act, s 4.

[22] Fitzgerald, above n 6, at 73.

[23] At 112.

[24] At 79.

[25] At 119.

[26] Glenn McConnell “'It will not work': Ex-cop and National MP says party's gang policy is made for headlines” (12 June 2022) <https://www.stuff.co.nz/national/politics/300610969/it-will-not-work-excop-and-national-mp-says-partys-gang-policy-is-made-for-headlines>.

[27] McConnell, above n 26.

[28]  McConnell, above n 26.

[29] https://www.auckland.ac.nz/en/news/2020/10/29/taking-issue-can-gangs-ever-be-good.html

[30]Schubert v Wanganui District Council [2011] NZAR 233 at [130].

[31] At 107.

[32] At 167.

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