The Bill seeks to improve public confidence in the justice system and deter and denounce serious repeat offending by reinstating a revised ‘three strikes’ regime. This includes sentencing without eligibility for parole for second and third-strike offenders, unless it is manifestly unjust. 

The Law Society acknowledges several improvements to the new three strikes regime, which take into account the Supreme Court’s decision in R v Fitzgerald¹. These changes include: 

• The addition of a refined list of qualifying offences. The ‘strike consequences’ will only apply if the court determines that a sentence of more than 24 months’ imprisonment applies. 
• All mandatory elements of the new three strikes regime will be subject to an exception, meaning that a court would not be required to impose a mandatory sentence if doing so would result in manifest injustice. 
• The three strikes regime will not apply to offenders under the age of 18. 

However, the Law Society submits that the Bill should not proceed. 

The Law Society’s submission raises concerns about the effectiveness of the proposed regime. Evidence suggests it will not significantly reduce crime rates and will have only a minimal deterrent effect for those who have received a first strike, with that deterrent effect then being lost between the second and third offence. The submission recommends changes to the Bill if it is to proceed:  

• Proposed section 86J imposes a sentencing threshold for the application of strike consequences, so that these would not apply unless the sentence imposed is more than 24 months’ imprisonment. The Law Society supports the introduction of such a threshold, but recommends consideration of a higher threshold than the proposed 'more than 24 months’ imprisonment’. A higher threshold would serve the purposes of the Bill without capturing less serious offending that sits on the bridge between home detention and imprisonment. 
• Additional concerns were raised about the proposed statutory guidance for judges about when and how to apply the manifestly unjust exception. Proposed section 86T(3)(a) of the Sentencing Act 2002 provides that a court cannot determine that imposing the strike consequences would be ‘manifestly unjust’ merely on the basis that mitigating factors apply. The Law Society considers that these factors can, and should, properly be the basis for determining whether a sentence under the three strikes regime is manifestly unjust. This provision risks undermining the changes made to ensure the amended three strikes regime does not result in manifestly unjust outcomes, like those identified in R v Fitzgerald. For example, diminished intellectual capacity and age are mitigating factors under the Sentencing Act 2002 and could, on their own or in addition to other factors, mean that a mandatory sentence under the three strikes regime is manifestly unjust. Proposed section 86T(3)(a) prevents such a finding. 

The Select Committee will report back to the House with its recommendations for the Bill, based on the submissions received, by 1 November, 2024.  

Read the Law Society’s submission  

Read more about the Law Society’s Criminal Law and Human Rights and Privacy committees

1. [2021] 1 NZLR 551.