Judicial rebellion? How New Zealand’s three strikes sentencing law has been applied

Nessa Lynch1
1Victoria University Of Wellington, Wellington, New Zealand

The Sentencing and Parole Reform Act 2010 introduced a tiered ‘three strikes’ sentencing law to New Zealand. While not as harsh as its Californian cousin, repeat violent offenders now face determinate sentences without parole, or where a second or third striker is convicted of murder – life imprisonment without parole. A coalition government which came to power in late 2017 promised to repeal the law, but a Cabinet paper which would have repealed the law was withdrawn in June 2018 after support from the coalition partner could not be assured. Media reports and polls indicate considerable public support for three strikes.

As part of a larger project considering judicial application of life imprisonment and mandatory or presumptive non-parole periods, this paper considers how New Zealand judges have applied this law, and balanced clear legislative direction with human rights concerns. A small number of potential life without parole cases have come before the courts, with judges consistently refusing to impose the sentence, relying on a legislative exception of ‘manifest injustice’. This exception has also been employed in the sentencing of lesser crimes.

Analysis of the reasoning raises wider questions about the judiciary’s role in moderating legislated penal excess, particularly given the apparent public support for the three strikes measure


Biography:
Dr Nessa Lynch is an academic at the Faculty of Law, Victoria University of Wellington, where she teaches and researches in youth justice, criminal justice and sentencing.

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