Sentencing: The judge’s decision about punishment
The “three strikes” law for repeated serious violent offending
Sentencing Act 2002, ss 86A-86I
The “three strikes” law is a strict law that can lead to unjust outcomes. The law says that if you are convicted of a third serious violent offence, then you must be given the maximum penalty for that offence without parole. You must have been given warnings by the judge when you were sentenced for each of the earlier serious violent offences.
The maximum penalty without parole rule does not apply where it would be “manifestly unjust”. The courts have said that means very substantial hardship.
“Serious violent offences” include, for example, sexual violation, murder, manslaughter, wounding with intent to injure, kidnapping, robbery, aggravated burglary and committing a crime with a firearm.
When you’re convicted of the first serious violent offence, you must be given a warning by the judge about the possible consequences of more serious offending. If you are convicted of another serious violent offence (not including murder), then the law says you must be given a “final” warning. These warnings can be written or spoken and do not need to be in a particular format or words.
If you have been convicted of murder before and are convicted of murder again, then the law says you must be sentenced to life in prison without parole (unless not having parole would be “manifestly unjust”). When the courts consider what is “manifest injustice”, they have looked at factors that reduce accountability for example, youth or a guilty plea.
They take into account both the circumstances of the offending and the situation of the offender when determining whether there will be manifest injustice. A guilty plea alone will not make a sentence manifestly unjust.
Case example: Third strike rule is “manifestly unjust”
F was charged with indecent assault and common assault for trying to kiss a woman walking down a city street. He then grabbed and pushed the woman’s friend who tried to stop him. F had many mental health conditions and had two previous convictions for indecent assault in public places which were classed as serious violent offences.
Under the three strikes law he would get the maximum sentence of seven years. F asked for a discharge without conviction (to try and avoid getting a third conviction and so escape the three strikes rule). The case was heard by the Court of Appeal.
The court said that the offending was not serious enough to justify imprisonment at all, let alone a seven year term. His mental health state made a seven year prison sentence “disproportionately severe”. Under the Bill of Rights Act F had the right not to be subjected to disproportionately severe punishment and so this was manifestly unjust. They said there should be a safety valve to allow a court to impose a less severe sentence where the maximum sentence would be manifestly unjust. The court didn’t agree whether he should be given a discharge without conviction.