New Zealand’s ‘Three Strikes and You’re Out’ Policy

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Since 2010, New Zealand has implemented a ‘three strikes policy’ to crack down on repeat offenders. The laws take power away from the courts when it comes to determining penalties for those convicted of multiple serious offences, and can lead to the mandatory imposition of life sentences without the possibility of parole.

The laws have been welcomed by conservative commentators and others who want to to appear ‘tough on crime’, while being criticised by civil libertarians and those with expertise in the criminal justice system.

The former group claim that current sentences are simply too lenient, while the latter point to the fact that rigid sentences can lead to unfair outcomes – with offenders being handed penalties that are far too harsh given their particular offence and subjective circumstances.

The policy essentially works as follows:

  1. STRIKE ONE: those who are convicted of a relevant offence receive a ‘strike’, where the Judge warns them of the serious consequences that follow accrual of multiple strikes. The warning is delivered verbally in the courtroom as well as through a written notice.
  2. STRIKE TWO: an additional conviction leads to a second strike, whereby offenders must serve their full prison terms without the possibility of parole.
  3. STRIKE THREE: a third conviction takes discretion away from the Judge, who must impose the maximum sentence available under the law. Again, prison time must be served in full, without the possibility of parole. This means that a conviction for an offence which carries a maximum penalty of life imprisonment must be served in full – with life meaning life.

There are rare circumstances which allow the Judge to disregard the ‘three strikes policy’, but they are exceptional, and can only be used when the maximum penalty would be ‘manifestly unjust.’

There are currently 40 offences that must be dealt with under the ‘three strikes’ policy, all of which are listed in the Schedule to the Sentencing Act 2002. The offences range from murder to kidnapping, robbery and indecent assault. All of the offences are either sexual or violent in nature. But some want to include a wider range of offences.

For example, MP David Seymour believes the three strikes rule should be extended to break and enter offences, which he argues are under-reported, and sentenced too leniently.

The Sensible Sentencing Trust, which is the body that lobbied for the three strikes policy, says that no-one has yet received a third strike – although there are 3,721 people with one strike, and 29 with two strikes.

US ‘three strike’ policies

Several versions of the ‘three strikes policy’ exist in America, varying from state to state.

Until 2012, California’s three strikes policy captured an extremely broad range of offences. For example, a person could have been sentenced to 25 years or life imprisonment if they had three convictions for relatively minor offences such as shoplifting, car theft or common assault.

What about Australia?

There is currently no ‘three strikes’ equivalent in Australia.

However, recent years have seen a move away from judicial discretion towards rigid and harsh sentencing regimes –including the introduction and expansion of ‘standard non parole periods’, guidelines judgments, mandatory sentencing and increased maximum penalties for a range of offences.

And with both major political parties wanting to appear ‘tough on crime’, we may not be far from such inflexible and potentially unfair rules being adopted here.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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