Kerre Woodham: Only the worst of the worst are impacted by Three Strikes

Several thousands more offenders are likely to be captured under Three Strikes 2.0 following changes by Cabinet to toughen up the act. These changes, announced this morning, include halving the sentencing threshold for a first strike, and making it retrospective (controversial with lawmakers). That would capture several thousands of the 15,000-odd offenders with strikes to their name under Three Strikes 1.0.

When it was repealed by Labour, who said it was harsh and punitive and unfair to Māori and Pasifika, you might have thought that anybody who had a first or second strike when it was repealed would see them wiped. No, under this legislation they haven't gone away, they're still there. Associate Justice Minister Nicole McKee said the changes were in response to public feedback, saying her initial proposals were too soft, though as they say they're likely to irk the legal community, as making it retrospective raises new tensions with the Bill of Rights Act.

So, the law is aimed at the worst violent and sexual offenders, imposing on them ever harsher sentences for repeated convictions for certain qualifying offences. Strike one would mean a normal sentence and a warning that the strikes now apply. Strike two means serving the full sentence with no parole. Strike three would mean serving the maximum sentence allowable for the offence, with no possibility of parole. It was introduced in 2010 under National (supported by ACT), repealed in 2022 under Labour, and the Coalition Government said that they would bring it back – and they have done so.

Officials said the first iteration of Three Strikes was very popular, had all the right notes with voters, but didn't actually work, had no significant quantifiable benefits. They said there's no evidence that the Three Strikes law reduces offending or makes the public feel safer, but what it does do is negatively impact prisoner rehabilitation. Law Association Vice President Julie-Anne Kincaid spoke to the Mike Hosking Breakfast this morning about her disappointment:

“First of all, there's no evidence that this actually works in the way that people want to work. It's not a deterrence, unfortunately. What we want, all of us want less crime and less serious crime, but this is actually going to capture all sorts of people who shouldn't necessarily be there. For example, sentencing is very nuanced and difficult, and some people might be sent to jail simply because they don't have a house in which they can do an electronically monitored sentence. It will lead to unfair and unjust outcomes.

“Sentencing must be nuanced. There are so many factors in human beings that apply. We look first at the offence always in sentencing and the judge takes a starting point based on the offence and then they look at factors that are unique to that offender, and there's a balance that has to be performed with all sentences, and it's complex and that complexity might not always come across in a newspaper article which I think is where a lot of the people who see problems get their information.”

Well, they do, and we do. When you see that a judge has given a discount for this, a discount for that, a discount for that, a discount for that, it does. Do you see nuance or do you see a judge being soft on crime? And how often do you give the discount? I'm all for giving a discount first time round: you had a terrible upbringing, absolutely appalling, unforgivable that you were raised in an environment like that, little choice but to join a gang because that was the neighbourhood, that was the security, that meant that you weren't going to be abused by your uncle and you commit a crime because you're part of the gang. Okay we understand that that's appalling and we're terribly sorry as a community that that happened to you.

So now you go to jail and, if you can, take advantage of the rehabilitation programs that are there. But you can't come out and do it again and plead the same thing. You can't have a licence to commit crime for the rest of your life because of your appalling upbringing. You can understand why you do it, but you can't be excused for it because not everybody who has a shocking start in life does that. There's still an element of choice and free will in what you do.

So ACT, who is the party that supported it when it was first introduced by the Key Government in 2010, is unapologetic and says Three Strikes sends a signal to violent offenders that New Zealanders won't tolerate repeated violent and sexual offending. According to ACT, the average Three Strikes offender has 75 convictions. So to even get within the realm of having Three strikes apply, you have to have 75 previous convictions, not just appearances in court, this is where you have been found guilty.

Under the previous regime, only 24 people were sentenced to a third strike, so it's not being used willy nilly. The total number of people sentenced to a first, second, or third strike accounted for just 1% of the people sentenced in our courts. They were the worst of the worst. These offenders leave behind a long list of victims, some of whom will never recover from the trauma. So, I'm okay about that. 75 previous convictions for violent and sexual offending, I don't care about your rehab, I actually do feel safer. I don't care if prisoner rehabilitation is negatively effective, because after 75 convictions it's going to take a seismic shift within the individual, not a prison program, to rehabilitate them. I'm good.

Kerre McIvor, is a journalist, radio presenter, author and columnist. Currently hosts the Kerre Woodham mornings show on Newstalk ZB - where this article was sourced.