Three Strikes Legislation Repeal Bill

Members, we come now to Part 2. This is the debate on clauses 11 to 32, “Amendments to other legislation”. The question is that Part 2 stand part.

Thank you, Madam Chair. We come to Part 2 of this legislation. This is the repeal of the three-strikes legislation. For those just tuning into this debate, this three-strikes legislation was introduced 10 years ago to toughen up the consequences for repeat serious offenders.

Now, there’s examples of this all around the world in the United States and popular mythology. It’s meant that somebody in the back streets of L.A. getting a traffic offence for a third time, being sent away to prison for life. Those examples are sometimes hinted at on the other side.

That’s not how it’s operated in this country; it has been only in relation to specified violent crimes. Section 21 of the principal Act—to run through some of them, sexual violation, attempted sexual violation, very serious crimes of murder, and so forth.

So it’s only when repeated convictions have occurred. The idea of the legislation was to ensure at the third strike that the full maximum sentence is served with the point that there would be a disproportionate outcome that rather than receiving the heavily reduced shortened sentences—which are often the case in our criminal justice system—that a third-strike offender would get a much longer sentence, with a couple of objects in mind.

First, potentially to act as a deterrent—and there’s a lot of debate about whether that indeed is the case. The only point I’d make on that is, well, that there was 13,000 with the first strike after 10 years, only 640 with a second strike, and after the same period, only 21 on a third strike. So it’s not as if everybody is ignoring the consequences and carrying on to third strikes.

But the second goal, of course, was to keep the community safe. This part here refers to victims and amendments to the victims’ orders against violent criminals and deals with how they’d be impacted by this.

Of course, we heard many submissions during the select committee process. One from Nick Tuitasi, for example—a former policeman, I understand, from up in Northland; highly respected former policeman. He made the point that third-strike people have around 70 offences each; they are not garden-variety, small-time crooks. They are some of the worst repeat offenders in New Zealand who have caused mayhem and created many, many victims. His point was: the law was designed to take them out of circulation to reduce the number of victims; to give victims a break so that they’re not going to be faced with the same person that terrorised them and their family three or four years ago in short order to find them coming back.

So he talked of victims of crime still being scared to go out at night as a result of what they have experienced. So the job of Parliament, Mr Tuitasi said, was to keep our citizens safe when it comes to hard recidivist offenders. So the primary sort of purpose is to reduce the number of victims of crime. So my question to the Minister is: how does repealing this legislation—and Part 2, amending the victims’ orders against violent offenders—reduce the number of victims of crime? I’d like to hear the answer to that.

Thank you, Madam Chair. I’m hoping the Minister can clarify this—and I acknowledge I might be wrong, so perhaps we can just get some clarification.

Part 2 section 12 says that section 22H will be amended—it’s the persons disqualified from holding a firearms licence—and it’s going to replace 22H(a)(ii) with a new subsection 2, which is a specified violence offence as defined in section 4 of the Victims’ Orders Against Violent Offenders Act 2014. That section 4 actually refers back to section 86—so, under violent offence, has the meaning given to serious violent offence by section 86A of the Sentencing Act.

My question to the Minister there is that the actual amendment is removing section 86A and replacing it with what looks like section 86A. I could be wrong there, but I’m just wondering if the Minister could clarify: are we repealing in order to actually put that same piece of legislation in, or what’s happening there? Hopefully, I’ve just misunderstood and you can clarify that.

Thank you, Madam Chair. And thank you to my colleague. It’s an astute observation so I will just quickly walk through it. So thank you.

OK, so what we have here is this corrects the cross-reference in the Arms Act from “serious violent offence”, which is the terminology used in the Sentencing Act to specified violent offence in the Victims’ Orders Against Violent Offenders Act 2014—so shifting it really from one Act and bringing it under the other. We’ve also kept the specified offences there as well. I hope that helps.

Thank you. We’ll have actually two questions, but also it’s a welcome chance to take one’s mask off and stretch one’s legs.

Part 2: can the Minister—and it’s, funnily enough, on Paul Goldsmith’s question which hasn’t been answered yet—tell the House what the average, or her officials, the average number of offences which a person receiving a third-strike legislation has done. I know that the average prisoner, I think, and this is in general terms within our prisons, already has 40, 50, 60 convictions. So some indication that the Minister could give to the House via her officials would be very helpful, because I think it is important for people to understand that the people that the three-strikes legislation is targeted at is not all criminals. As I say, it’s people with very, very, very—let’s do three verys—serious offences. So that’s the first question: how many offences have they had?

The second: is the Minister able to tell the House some of the offences which triggered—triggered—the likes of the three-strikes legislation. Again, there is potentially a belief out in the general public that one stealing candy bars from babies in parks would trigger this law, which it would not. So I’m really interested in if the Minister would give us some examples of what crimes. There’s quite a list of them. If it’s helpful to her, she’s changing some of the nomenclature and they’re in section 22. But I’d be fascinated if she would read—maybe just five for a start—the nature of the crimes which trigger the three-strikes legislation that she’s trying to repeal.

I think I’ve got all the information from my friend. Hopefully, it was provided to you as well through the select committee process. I apologise if it wasn’t.

So first, just want to draw on a comment from one of the submitters. She was a mental health nurse, and it relates back to the case I just provided before with the mental health patient who was an outpatient who committed that offence of robbery. My understanding is that there was quite a significant rap sheet that he had as well, which is how he got up for that third offence and that maximum penalty for robbery of 10 years, in contrast to the sentencing indication which was 18 months. Now, in that case there was a mental health patient—and had severe health issues broadly noted by all—that took that case through. That same factual scenario gave me pause to consider the submission from a mental health practitioner who gave evidence through the submission process, who spoke about a majority, if not all of her clients, had significant rap sheets, lengthy—lengthy—rap sheets. Not all of them, of course, were serious offences. Often she said that there were traffic offences that resulted in fines, and the cumulative effects could result in a raft of different things from, you know, travelling in vehicles without licensing, etc. etc. It was a slippery slope. But she said that that was one of the—I guess it was a frequent factor in the clients that she was working with as a mental health practitioner.

So if I then look at, OK, well, how many offences did each of these people have that came up for their second or so offence? Oh, there’s an average of 20 to 30. When you start to look at the types of offences, were they all serious offences? No, not at all. Were some of those offences serious? I’m sure that they would have been. I’m sure that you’ll be able to find factual scenarios that support them.

When we get to the third offences, it goes up even further, you’re absolutely right—can get up to 60 offences. Again, when you start to look into the depth of the types of offending that occurred, as that mental health practitioner who gave evidence at the select committee hearing said, her clients that she dealt with, in and out of the system, lengthy rap sheets, not all serious offending. Carry that through to, therefore, cases like in the Queen v Fitzgerald, when they are going to incarcerate, or when they apply the third-strike principle, and that’s where you get that big discussion about whether or not this is a proportionate limitation, with respect to sentencing.

This is where there has been so much, I guess, reflection and cause for concern. The Opposition keeps saying they can’t hear the evidence. Well, I don’t know who else you get evidence from but from those that deal with these issues day in, day out, on the coalface. My friend referenced a police officer that gave evidence. I understand some police officers gave evidence during the submission process with contrary views as to whether or not the third strikes regime was useful. Those issues, though, are by the by.

If I come through and look at Part 2 of the Amendments to other legislation, Part 2’s, again, very limited in its effect. All that Part 2 does—and Part 2 is the subject of our debate now—is it amends other legislation. All that Part 2 does is it removes a reference to strike warnings in said Act, whether that’s the Criminal Procedure Act, whether that’s the Evidence Act, whether that’s the Parole Act, etc. That is what Part 2 does. This isn’t an opportunity to give verbose reflections on whether or not, like under Part 1—

💬 Hon Paul Goldsmith: Point of order, Mr Speaker. As I’m sure you’re aware, it’s not appropriate for a speaker to be giving rulings on what is or isn’t appropriate for the House to be doing.

Responding to the point of order.

CHAIRPERSON (Hon Jacqui Dean): No. No, thank you.

Responding to the—

CHAIRPERSON (Hon Jacqui Dean): No. Thank you.

Point of order, Madam Speaker.

CHAIRPERSON (Hon Jacqui Dean): Yeah. I haven’t finished responding to that one.

He’s sitting down.

CHAIRPERSON (Hon Jacqui Dean): The member will resume her seat. Hon Paul Goldsmith, had he finished his intervention? [Hon Paul Goldsmith nods] Thank you.

Responding to the point of order, Madam Chair. My remarks are very squarely related to the Part 2 amendments to other legislation component that we’ve been debating this morning.

CHAIRPERSON (Hon Jacqui Dean): Yip. OK. That’s enough. Thank you.

Thank you, Madam Chair.

CHAIRPERSON (Hon Jacqui Dean): We’ll start this clock again.

Thank you, Madam Chair. To assist the committee, again I reiterate my remarks. Part 2 is a very limited part. It is concerned with amendments to other legislation. It removes references to strike warnings in a series of the Acts, the Criminal Procedure Act, the Evidence Act, the Parole Act, and a few other Acts there. This is what Part 2 does—it removes the reference to strike warnings.

I’ll try not to be verbose, I think I spoke for 42 seconds in my last questions versus the five-and-a-bit minutes from the Minister. Thank you for the comments around the nature of the offences. If someone’s got 60 or so, we absolutely accept some of those will be driving, cannabis, and so forth. But it would be useful if the Minister could acknowledge, perhaps, that also on those wrap sheets are exceptionally serious offences, and it’s that serious-level offending which triggered what will soon be, I suspect, previous three-strikes legislation. That’s the first question.

The second, which she didn’t answer earlier, is: what are some examples of the crimes which triggered three-strikes legislation, and, if it—

CHAIRPERSON (Hon Jacqui Dean): Order! Order! The member might care to help the Chair and identify which clause in Part 2 he’s referring to.

Delighted to.

CHAIRPERSON (Hon Jacqui Dean): I’m looking but I can’t find it.

Well, if I might, Madam Chair, clause 22, which lists a variety of specified violent offences, which, I was about to ask the Minister, are they the similar or same offences which have been—

CHAIRPERSON (Hon Jacqui Dean): OK. Thank you—thank you.

That’s OK. So, to the Minister, can she indicate, via clause 22, are the list of those now specified violent offences some or all of the serious offences that once triggered three-strikes legislation, such as sexual violation, sexual connection with a child; attempted murder; aggravated injury; discharging a firearm; and so forth—are those, in clause 22, some of those offences which triggered three strikes?

The last question is around her comments around mental health. I certainly understand a number of people enacting crime have mental health issues. I’d like to know if she or officials have any statistics on those engaged in high-level serious offences. Are we talking all those committing those crimes have mental health issues? Is it half? Is it a third? I suppose I’m just keen to understand, while she, rightly, raises mental health: is she arguing from the norm or is she bringing an argument from exception? Thank you.

Thank you, Madam Speaker. I’ve got a couple of questions for the Minister, in terms of how the repeal and new Part 2 is going to interact with sentencing and the dealing of—and she mentioned this in her opening statement or has mentioned this, maybe, in the House yesterday around the increase in sexual offending. One of the examples that was used, and I think it was a very poor example, when her predecessor was looking at trying to repeal the three-strikes legislation, was a sexual assault on a female Corrections officer, and this was committed in her workplace, where she was cornered and the offender grabbed her with a sexual intent and nature. It was characterised by the then Government justice Minister Andrew Little as a pinch on the bottom, which I couldn’t believe in a modern New Zealand that we are trying to trivialise a sexual attack on a woman in her workplace. I want to know whether or not she also considers, as the new justice Minister, that that is a minor level of offending that shouldn’t be captured by the three-strikes legislation, and why she feels that it shouldn’t be captured by the three-strikes legislation.

And now that it’s being repealed, how is it going to be dealt with in the new Part 2? I would assume that it would be captured under section 129, inserted by clause 22 (4), “(attempted sexual violation and assault with intent to commit sexual violation)”, which, in my view, is a serious offence.

Thank you for that question. I think it’s a really important one. I don’t consider any offence of any kind to be minimal where it can be categorised as a significant offence. That person, that victim, would have no doubt felt shame and humiliation and everything that we have these penalties in place for. What I am assured of, and this comes back to my friend Minister—Mr O’Connor’s point—

💬 Simon O’Connor: I liked where you were going there.

I’m happy to flick you a cheeky one, my friend.

All of those offences that are listed, like sexual violation, all of those incredibly serious violent offences stay exactly that—serious violent offences where the judiciary has discretion to apply the appropriate penalty. No one on this side of the Chamber is arguing that anything in that offence list is inappropriate or should not be deemed as a serious violent offence. Secondly, just on the question around the statistics for those that suffer serious mental health issues, the report that I have from Corrections is that 91 percent of incarcerated people have serious and significant mental health afflictions.

This part is in relation, as the Minister said, to removing strike warnings in relation to other actions, so the idea is that how the legislation worked was that if somebody’s a first-strike offender, they’re given a warning that they are a first-strike offender and that if they do another act they will be on their second strike, and then they get another warning that they will be on their third strike. So it comes back to that fundamental debate that we’ve been having—do these warnings have any impact? Do they work? Do they have an effect?

We did hear from some submitters, and I remember the Criminal Bar Association making the argument that the sorts of people captured by this legislation don’t tend to be thinking straight at the time of their offending. They’re not taking a long-term logical view of life, and, having received a warning, are acting cautiously as a result of that. They’re living in the moment and they’re full of rage, or whatever it is, and are offending and therefore these warnings are pointless—that seemed to be the logic. I suppose there will be cases where indeed the people involved aren’t thinking straight at the time and are acting on impulse and the warning won’t materially alter their actions. But, presumably, there will be plenty of other cases where it will be at the back of mind of people, saying, “Heck, I am on my first strike,” or “I am on my second strike. I need to be careful.”

I don’t know in my mind what the breakdown would be. Would it be half of people having that at the back of their mind and adjusting their behaviour accordingly, and half living entirely on impulse? I don’t know. I suppose what troubles me is that, as the Ministry of Justice has pointed out, there is no clear evidence on any of these matters and it strikes me as odd that nobody has made the effort to find some evidence or do some research. I suppose that’s not regarded as a priority amongst groups that could be doing this kind of research, and I’d encourage them to do so. But I’ve been wondering on what basis the Minister is operating. Is she just accepting the argument that everybody who’s been given a warning is just living in the moment, acting on impulse, and not thinking through the consequences and therefore there is no point in having this legislation? Or does she accept that there is a variety of reactions across the board and this may be having an impact on some people’s thinking, and if it is, that may be ultimately reducing the number of victims of crime?

The other point I’d just make, finally, is that the impact it has on the behaviour of criminals and repeat offenders is only one part of the logic for the three-strikes legislation. It’s not the entire logic of the legislation. The other fundamental part of the logic of the original legislation was to keep New Zealanders safe by keeping the worst repeat offenders out of circulation for longer, recognising that these are repeat offenders and that the sooner they get back out on to the street they will reoffend. It’s possible that they may be rehabilitated but it is more likely that they return to serious offending and creating more victims. So extending the period where they’re out of circulation by its own act reduces the number of victims.

To the extent that that member’s questions fall within Part 2 of the amendments to the legislation, I’m happy to provide a response that recognises that, first, whilst we’re removing the strike warnings—and I understand that there were submitters that gave evidence in the select committee processes from those that had received these warnings. I understand that the general consensus was that there wasn’t any awareness of what a strike warning was. I actually understand that one submitter said that Nicole McKee was the first person who had asked her what it was. There’s no evidence to show whether on the statistics for the increase in—or reduction, rather, is what we’d be looking for: a reduction in violent criminal offending. There’s no anecdotal evidence from the courts, the judiciary, police officers, or those that have been through the system as a striker—first, second, or third—that the deterrent component had been useful.

But that brief remark aside, with respect to the strike warnings, yes, we’re removing the reference to the strike warnings because they no longer will have a function. What we are not removing are the offences. What we are not removing is the ability of the judiciary to be able to apply the sentencing regime to each and every single one of these serious violent offences.

Thank you. I’m just looking at clause 22(4) here, where it does list in alphabetical order the offences that will no longer be the subject of a warning if Part 2 is passed. Throughout this debate we’ve heard as a sort of a—there’s been a number of reasons given for this repeal legislation. They’re a little bit fluid, and they’re teased out rather than stated. But one of them, sotto voce, is the idea that some of these offences aren’t really significant and people are sent to prison for long periods of time for doing relatively low-level crimes.

So I’m looking at this list and I’m seeing sexual violation, I’m seeing sexual connection with a child, I’m seeing murder, attempted murder, I’m seeing injuring with intent to cause grievous bodily harm, I’m seeing commission of crime with a firearm, I’m seeing poisoning with intent to cause grievous bodily harm, I’m seeing kidnapping, I’m seeing aggravated burglary, I’m seeing aggravated robbery, and causing grievous bodily harm with intent to rob, or assault with intent to rob in specified circumstances.

I suppose the question I have to the Minister is which of these crimes—and I also see discharging firearm or doing dangerous act with intent to do grievous bodily harm. Which of these does she think is not serious or has the potential for people to be convicted and sentenced for unduly long periods such that removing the warning and repealing the Act is justified on that ground? So we’ve got the list there, the whole list of all—conspiracy to murder was one of them. Counselling or attempting to procure a murder—there’s another one.

The list of offences, to my mind, are all very serious. They’re high-level. I don’t see, for example, possession of cannabis or speeding or failing to have one’s warrant of fitness up to date or anything like that—no trivial offences, which is, in the public mythology around this legislation, getting people drawn into it. There’s nothing about possession of drugs at all in that list of offending. So I’d be very keen to get a clear sense from the Minister which of these crimes she thinks has the potential to lead to these perverse outcomes that are used to justify the repeal of this Act.

I move, That the question be now put.

Minister, firstly I just want to acknowledge you addressing my question and the fact that you have shifted the Labour position. You’ve done a 180 degree turn and you’ve acknowledged that, actually, the example that I gave that was used by a previous Labour justice Minister to try to trivialise a serious sexual assault on a female Corrections officer as a pinch on the bottom and as a rationale for being able to repeal this bill—you have rejected that and you have acknowledged that, actually, that is a serious sexual assault that would be captured under section 129. That was like music to my ears, so thank you.

Minister, I want to ask you what advice you have received and whether or not there has been any analysis done around risk in terms of the new list that you have brought to the House in Part 2 around sentencing, and whether or not, with the removal of the three-strikes component, there is now a risk that there may be lighter sentences applied, or parole that the offenders are eligible for, that may mean that they’re back out of jail quicker, sooner than they would have been under the three-strikes legislation, and what risk that poses to the community and what impact that has on the victims, because that is a serious, serious consequence of what you are proposing. It’s a serious consequence of what this Government is doing in the repeal of the three-strikes legislation. I would hope that there was some serious work undertaken by her officials to be able to model that and to be able to anticipate whether or not—with the repeal of the three strikes—there was any elevated risk of lighter sentencing, earlier parole, and serious violent recidivist offenders being back out in the community earlier than they would have under three-strikes legislation.

The question is that the Minister’s amendment to Part 2 set out on Supplementary Order Paper 187 be agreed to.

The question is that the Minister’s amendment to the Schedule, set out on Supplementary Order Paper 187, and the tabled amendment be agreed to.

Golriz Ghahraman’s amendment set out on Supplementary Order Paper 180 is out of order as being inconsistent with the previous decision of the committee.