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Three Strikes; Past, Present, and Pitfalls?

By Xu Wang


The incoming coalition government has promised to reintroduce the Three Strikes sentencing regime.

The regime in its original form aimed to impose enhanced penalties against offenders who had previously been convicted of serious violent offences. It operated for approximately 12 years before being repealed in 2022.

While the details of any new implementation are to be decided, this article discusses the ideological underpinnings of the regime.

The primary justification for three-strikes sentencing regimes is incapacitation — a criminal who is incarcerated cannot offend against the general public. For this to be effective, the regime has to be able to accurately predict the propensity of an offender to commit serious violent offences in the future. Therefore, a key factor in the success of selective incapacitation is the selection criteria used.

Studies indicate that offence-based criteria are not a reliable predictor of an offender’s propensity to commit further serious violent offences,¹ and that any decrease in violent reoffending is offset by the significant increase in the prison population.²

Any effective implementation of a three-strikes regime must be based on something more than an offender’s conviction history. By way of comparison, sentences of preventive detention cannot be imposed unless the Court has received two reports from health assessors about the likelihood of further violent or sexual offending.³

Conclusion

The original implementation of the three-strikes regime was introduced with the goal of keeping the community safe by incapacitating repeat violent offenders. In 2021, 11 years after its introduction a review conducted by the Minister of Justice showed that there was ‘little impact’ on deterring or reducing crime.

If three-strikes sentencing is to be taken as a serious exercise in reducing reoffending — and not merely an attempt to satisfy the public’s bloodlust, Courts must be guided by expert reports, rather than relying solely on an offender’s conviction history.




 

¹ See e.g. Mark Brown “Serious Offending and the Management of Public Risk in New Zealand” (1996) 36 Br J Criminol 18 at 20.),

² Arjan AJ Blokland and Paul Nieuwbeerta “Selectively Incapacitating Frequent Offenders: Costs and Benefits of Various Penal Scenarios” (2007) 23 J Quant Criminol 327 at 337.

³ Sentencing Act 2002, s 88.

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