Legal Beagle by Graeme Edgeler

Just sent the following submission in on the law repealing the three strikes sentencing regime.

You have until midnight tonight if you want your say.

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The Justice Committee

Three Strikes Legislation Repeal Bill

Submission of Graeme Edgeler

Introduction

1. This submission is made by Graeme Edgeler. I am a barrister with an interest in criminal law issues.
2. I support the Three Strikes Legislation Repeal Bill, and welcome the opportunity to comment on it.

Repeal of Life without Parole

3. While I support the bill, it is somewhat of a missed opportunity, as it does not repeal all the law changes made by the Sentencing and Parole Reform Act 2010.
4. A major part of the Sentencing and Parole Reform Act 2010 was the creation of the sentence of life without parole.
5. The sentence of life without parole creates sentences of no hope, and should not exist in New Zealand. I can accept that many people will never get out of prison after committing particularly heinous acts, but release should be theoretically possible for everyone.
6. It seems odd to me that Parliament would consider that finite sentences ordered to be served without parole are unjustifiable and the possibility of a court ordering them should be removed, but that indefinite sentences should nonetheless still be able to be ordered to be served without the possibility of parole.
7. It may be entirely appropriate that a particular person should never be released from prison, but that is a decision that should be made looking at them and their risk at the time by the New Zealand Parole Board, not by the sentencing court at the time of sentencing.

1. The Select Committee should take this opportunity to recommend to the House that the sentence of life without parole should also be repealed, in the same way that it is to repeal determinate sentences without parole.

Resentencing of People Sentenced Under the Three Strikes Regime

9. The bill as drafted adds transitional provisions relating to people currently serving sentences as second or third strikes. It provides that “a person is not eligible for release or re-sentencing as a consequence of any provision brought into force under the Three Strikes Legislation Repeal Act 2021”.
10. The Committee should be clear that this will not prevent people being resentenced if they meet the standard set by the Supreme Court in Fitzgerald[1](a third strike offence), which was applied by the Court of Appeal in Matara[2] (a second strike case) late last year.
11. However, to obtain this resentencing, people will have to appeal the Court of Appeal. This is an inefficient use of Court resources. Having to have three judges sit, using up time in the Court of Appeal, rather than a single judge in the High Court should not be necessary. Given the decisions of the Supreme Court and the Court of Appeal, this law would appropriately provide for re-sentencings if the tests in those cases are met.
12. This would not mean that everyone serving a second-strike sentence would succeed – the requirement that the sentence be inconsistent with section 9 of the New Zealand Bill of Rights Act is a high test to meet, but this is an argument that, given the law change, should be able to be made in the High Court, not one that should have to be made before a panel of judges in the Court of Appeal.

Conclusion

13. I support the Bill but recommend that it should be amended to provide the following:
    1. The repeal of the sentence of life without parole
    2. To provide a process by which those sentenced under the three strikes regime can apply to the High Court to be resentenced where the sentence imposed upon them was inconsistent with section 9 of the New Zealand Bill of Rights Act.
14. Thank for your consideration of this matter. I look forward to speaking to my submission in person.

 

Graeme Edgeler

[1] Fitzgerald v R [2021] NZSC 131.

[2] Matara v R [2021] NZCA 692.