Lock ‘em up & throw
away the key
Criminal injustice and the proposed
“three strikes” law
The legislation
• Ratcheting up penalties on repeat offenders
• 40+ qualifying offences (serious violent crime),
including murder, rape, robbery, indecent
assault, aggravated burglary
• On first conviction, first warning (“strike one”)
• Offence after first warning receives final
warning (“strike two”) and no parole eligibility
• Offence after final warning (“strike three”)
receives (a) maximum sentence, (b) no parole
The legislation (cont.)
• Section 86D:
(2) Despite any other enactment, if, on any occasion,
an offender is convicted of 1 or more stage-3 offences
other than murder, the High Court must sentence the
offender to the maximum term of imprisonment
prescribed for each offence.
(3) When the Court sentences the offender under
subsection (2), the Court must order that the offender
serve the sentence without parole unless the Court is
satisfied that, given the circumstances of the offence
and the offender, it would be manifestly unjust to
make the order.
The legislation (cont.)
• ACT Party pamphlet:
“The judge sentencing a Strike Three offender will
have no option but to sentence the offender to the
maximum sentence. The only exception is if the judge
determines it would be ‘manifestly unjust’ to do so.”
• This is wrong: the judge quite clearly has no
discretion in respect of imposing the maximum
sentence. In other words, it is mandatory.
The legislation (cont.)
• If third strike is manslaughter: (a) life sentence
and (b) at least 20yr non parole period
• Court need not order (b) if manifestly unjust in
which case at least 10yr non parole period
• An example: robbery (1yr), robbery (4yrs, no
parole), aggravated burglary (14yrs, no parole)
The legislation (cont.)
• For murder, law now is life with at least 10yr
non parole period unless manifestly unjust
• If murder is second or third strike: life without
parole unless manifestly unjust
• If manifestly unjust, then either at least 20yrs
(if third strike) or 10yrs (if second strike)
• Further: strikes do not lapse, no cumulative
sentences, life without parole authorised
Purposes of sentencing
• Retribution is the central purpose
– Punish the offender’s wrongful choice
– Punishment should be proportionate to wrong
– Like cases to be treated alike
• Retribution justifies but limits punishment
• Other purposes (deterrence, public safety,
rehabilitation) are limited by retribution
• Public or victim confidence not an end in itself
Nature of offences
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The legislation purports to be proportionate
However, it ignores the variety of criminal acts
Robbery: street robbery or bank raid
Related offences: robbery, aggravated
robbery, burglary, aggravated burglary
• Burglary is not a qualifying offence
• Many offences do not involve actual violence
Nature of offences (cont.)
• Not all serious violent offences are included
• This focus on violent crime ignores other grave
wrongs: drug dealing, fraud, corruption
• There is a tendency to treat all sexual and
violent crime as if it were worst of worst
• Focusing on this class distorts punishment
Aggravating factors
• Judges should take into account:
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Abuse of trust or authority
Hatred for the victim’s race, religion, etc
Participation in organised crime
Impact of the offence on the victim
Brazen defiance of the law
Previous convictions (date, frequency, relevance)
Premeditation
Particular cruelty in committing the offence
Efforts to conceal the offending
Mitigating factors
• Judges should take into account:
– The offender’s limited involvement in the offence
– The conduct of the victim
– The age of the offender
– The offender’s limited intellect or understanding
– Previous good character
– A plea of guilty, especially an early plea
– Evidence of remorse or reparation to victim
– Cooperation with the authorities
Arbitrariness of the scheme
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The scheme ignores the detail of the wrong
Arbitrary to ignore almost all relevant factors
Arbitrary to treat criminal history in this way
Very different wrongs each count as one strike
Prior convictions are relevant, but punishment
should still be for this particular crime
Arbitrariness of the scheme (cont.)
• Unjust outcomes are likely:
– Much harsher punishment for same offence on
second and third strike
– Much harsher punishment for less serious offence
on third strike than for more serious on second
– Identical punishment for offences of very different
gravity on third strike
• Ringleader (who is violent, cruel) may be
punished less than others (who plead guilty)
Examples of injustice
• Set aside second strike consequences
• Assume two relatively minor qualifying
convictions: indecent assault (drunken grope),
wounding with intent (pub brawl) or robbery
(unplanned street robbery, no violence)
• Final warning may have been many years ago
• Now consider the third strike consequence
Example one
• An indecent assault conviction (drunken
grope) receives 7yrs, no parole
• This may be more than for rape (if guilty plea)
Example two
• An unplanned street robbery (no violence)
receives 10yrs, no parole
• This would be to treat this offence as if it were
as bad as (or worse than) a vicious, violent
invasion of someone’s home or business
Example three
• A street robbery by two persons (an
aggravated robbery), with no violence receives
14yrs, no parole
• But for this scheme, up to 3yrs would be likely
• The offence is much less serious than a
violent, premeditated armed robbery
Example four
• Breaking into an empty warehouse with a
knife or crowbar (aggravated burglary), no
violence used, receives 14yrs, no parole
• This is to treat the offence as equivalent to a
very violent armed robbery or kidnapping
Example five
• The courts recognise three variants of GBH,
depending on context and injuries inflicted
• Imagine a woman who in a rage seriously
assaults the man who has abused her children
• She receives 14yrs, no parole, just as if she
were a mob enforcer who beats a witness half
to death to corrupt a trial
Manslaughter
• Manslaughter covers a very wide range of
acts: assaults causing death, accidents, etc
• Imagine a mechanic who negligently repairs a
car’s brakes, leading to the death of the driver
• He receives life, with at least 20yrs non parole
• The judge will certainly reduce this to 10yrs,
but this is still no different to murder
• It is perverse to sentence him as if a murderer
Murder
• The scheme makes a life sentence mandatory
• For some murders, judges would otherwise
conclude this was manifestly unjust: ‘mercy
killing’, provocation, excessive self-defence
• If unjust to impose life for this crime, previous
convictions do not change this
• Very many first-strike murders are worse than
second or third strike murders
The scope of the proposal
• Initial proposal targeting “the worst of the
worst”
• Counting as a strike a sentence of +5yrs
imprisonment for qualifying offence
• Current proposal counting as strike only a
conviction for qualifying offence
• Shift to qualifying conviction radically widens
the scope of the legislation
The deterrence rationale
• General deterrence – punishing offender to
deter others
• Declaratory power of criminal justice system
• Doubling sentence does not double deterrent
effect
• Individual deterrence – punishing offender to
deter him /her from future crime
• Whether judicial warnings are an effective
deterrent
Parole and incapacitation
• Sending message parole a privilege not a right
• No need to abolish parole to send that
message
• Impossible to prevent all offending on release
• Impact of removal of parole on prisoners and
guards
• Benefits of parole – aids rehabilitation
• Increase eligibility to 2/3 of nominal sentence
Impacts on trial process
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Inevitability of more defended hearings
Removal of incentive to plead guilty
No encouragement for remorse
Shift in significance of prosecutor’s discretion
Shift of discretionary powers to executive
branch
• Risk of further compounding of arbitrary
sentences
Costs and alternatives
• Significant operating and capital costs of 3
strikes
• Problem of aging prisoners in jails
• Burden to CJ system of increase in defended
hearings
• Alternative uses for funding, including victim
support and speedier resolution of cases
• Increased use of existing sentences
Conclusion
• The punishment should fit the crime
• However, mandatory sentencing ignores the
wrong and will do injustice in many cases
• The deterrent impact is likely to be limited
• It is unwise to abolish parole altogether
• We should look for reforms that enable just
punishment and do not destroy hope