Chapter 11
Sentencing for homicide

The three strikes provisions

11.72The Sentencing Act was amended in 2010 to introduce provisions commonly known as the three strikes law. These are contained in sections 86A–86I of the Act. These amendments significantly curb sentencing discretion for violent offences. Under the three strikes law, people convicted of a first strike offence must be given a warning about the effects of a second strike offence. If they are convicted of a second strike offence, they will be required to serve the full term of imprisonment rather than being eligible for parole. On a third strike, they must serve the maximum penalty available, also without parole, unless that would be manifestly unjust. Strike offences include a range of sexual and violent offending. There are specific provisions for murder committed as a second or third strike offence and for manslaughter committed as a third strike offence, which we discuss below.

Murder convictions under the three strikes law

11.73Under the second and third strike murder provisions in section 86E, the offender will be required to serve a life sentence without parole, although the prohibition on parole can be departed from if the court is satisfied that life without parole would be “manifestly unjust”.

11.74If the “manifestly unjust” threshold is met, the court must order a minimum period of imprisonment of at least 20 years for a third strike offence and at least 10 years for a second strike offence. The 20-year minimum period of imprisonment for a third strike offence can be departed from if the court considers it would be manifestly unjust. In all circumstances, the minimum period of imprisonment is 10 years. There is no scope to impose a finite sentence. This applies to both second and third strike murder convictions.

11.75To understand the effect of the three strikes law for murder, it is necessary to return to the discussion of section 102 of the Sentencing Act. Section 102 provides that those who are convicted of murder will be required to serve a sentence of life imprisonment with a minimum period of imprisonment of 10 years unless this is manifestly unjust. Under the three strikes provisions, offenders who would otherwise have met the “manifestly unjust” threshold (including victims of family violence who kill their abusers) will now be required to serve a life sentence with a 10-year minimum period of imprisonment. Section 102 was amended when the three strikes law passed to provide that it is subject to new section 86E(2),1028 so there is no room to read down the three strikes provisions that do not permit discretion in cases of manifest injustice.

Manslaughter convictions under the three strikes lawTop

11.76If a second strike offence is manslaughter, the offender will be required to serve the full term imposed without parole, but the court retains discretion as to the duration of the term imposed (that is, it need not be life).1029 This is a significant difference between second strike manslaughter and second strike murder.
11.77However, if manslaughter is a third strike offence, a similar approach applies as for murder,1030 though with a more lenient starting point. A life sentence must be imposed with a minimum period of imprisonment of no less than 20 years. This can be reduced to a minimum period of no less than 10 years if the court finds that a minimum period of 20 years would be manifestly unjust.1031 As with a second or third strike murder conviction, there is no ability to depart from the life sentence even in circumstances of manifest injustice.

11.78As mentioned above at [11.68], in sentencing decisions in manslaughter cases that involve deliberate injury, the courts have followed the guideline for grievous bodily harm sentencing in Taueki. The three strikes legislation cuts across this approach. It requires courts to focus solely on the fact of the manslaughter conviction and not on the seriousness of the action that caused death.

The effect of mandatory life sentencesTop

11.79A minimum period of imprisonment has a very different effect when the offender is serving a life sentence rather than a finite sentence. In the case of a finite sentence, the minimum period of imprisonment is the minimum portion of the sentence that must be served, and on release, the offender will be subject to parole conditions for the remaining duration of the finite term. When a person is sentenced to life imprisonment, they are subject to parole conditions until they die and can be recalled to prison if they breach their parole conditions at any stage in the future. There is also no guarantee that the offender will ever be released on parole – the assessment is undertaken with regard to community safety and the offender’s rehabilitation progress and reintegration prospects.

“Manifestly unjust” and the three strikes lawTop

11.80At the time of writing, there have been four homicide convictions under the three strikes law – all for murders committed as second strike offences.1032 In each of the four cases, the judge has taken the view that it would be manifestly unjust to require the defendants to serve sentences of life imprisonment without parole. The earlier two cases, R v Harrison and R v Turner, are awaiting hearing by the Court of Appeal, the Solicitor-General having appealed against the sentences on the basis of the “manifestly unjust” question.1033 Given these two appeals, we make no specific comment on the cases. However, we make some general observations about the three strikes law and the exceptions provided through the “manifestly unjust” proviso.

11.81The term “manifestly unjust” is used in the Sentencing Act as follows:

11.82For each section, the judge must consider whether the default sentence under the statute would be manifestly unjust. Under sections 102 and 104, if the threshold is met, the judge will then determine the sentence in accordance with the ordinary principles of the Sentencing Act. Under the three strikes provisions, the judge is able to depart from the presumptive sentence of life imprisonment without parole for murder or the presumptive sentence of life imprisonment with a 20 year minimum period for manslaughter but cannot impose a finite sentence and cannot impose less than a 10-year minimum period.

11.83This means it is possible that some offenders who would have received a finite sentence prior to the three strikes law will now receive a sentence of life imprisonment with a minimum period of imprisonment of 10 years. However, somewhat anomalously, an offender who previously would have received a life sentence for murder with a minimum period of 10 years may not receive any uplift under the three strikes law.

11.84This is particularly problematic for third strike manslaughter convictions and, in the section below, we consider how this might apply to some of the cases we have reviewed. It is apparent that there could be a substantial disparity between manslaughter sentences imposed where the offender has two prior qualifying convictions compared with a similar offending not caught by the three strikes provisions.

Effect on victims of family violence who commit homicideTop

11.85The effect of the three strikes provisions on victims of family violence who kill their abusers will depend on the number of previous strikes and whether the conviction is for murder or manslaughter. The requirement to impose a life sentence could arise if:

11.86In each case, the most lenient result possible is a life sentence with a minimum period of imprisonment of 10 years. This would put any such case at the very highest end of the cases identified in our case review.1034 We consider below the potential sentencing uplifts that could apply. It is significant that this could easily arise for a manslaughter conviction as well as in cases, less common in our review, involving murder convictions.

11.87A range of offences could qualify as a first or second strike. These are specified in section 86A. Most sexual offences are included together with most violent offences other than low-level assault. Offences against property where a weapon is involved are also included. The list of qualifying offences includes some offences that span a considerable range of seriousness, such as “wounding with intent to injure” and “aggravated burglary”.

11.88Within our case review of 20 convictions, we have identified three cases in which prior offences might have been caught by the three strikes law had they occurred after it was enacted. Two of these cases involved manslaughter verdicts and one case a murder verdict. All involved guilty pleas. There may be other cases in which the offender had a prior violent conviction that was not mentioned in the sentencing notes.

11.89In R v Brown,1035 the offender killed her abusive partner during an argument and pleaded guilty to manslaughter. The sentencing Judge noted a prior conviction for “injuring with intent”. Other prior convictions were alluded to but not identified. If any of these had been qualifying offences and the three strikes law had applied, Ms Brown would have been sentenced to life imprisonment with a minimum period of imprisonment of 10 years as opposed to a finite sentence of five years and six months with eligibility for parole in the normal course. This is a stark difference in outcome.
11.90In R v Stone,1036 the offender killed her partner by a stab to the leg during an argument and pleaded guilty to manslaughter. The Judge noted “a past of violent convictions, two for assault and others for wilful trespass and driving with an excess breath alcohol level”.1037 It is not clear whether the assault charges referred to are common assault or more serious offending that would be caught by the three strikes law. The sentence in Stone was three years’ imprisonment, which reflected the strange circumstances of a wound to the leg resulting in death. Despite these particular circumstances, if her case had been caught by the three strikes legislation, Ms Stone would have been required to serve a life sentence with a minimum period of imprisonment of 10 years.
11.91The judge in Rihia noted a previous conviction for assault by Ms Rihia against Mr Rihia. It was not stated whether this was common assault or a more serious offence. If this conviction resulted from the incident described in the judgment in which Ms Rihia “attacked Mr Rihia repeatedly over the head with a table leg”,1038 it could have been charged as “wounding with intent to injure” and thereby qualify as a first strike offence. Similarly, in Wihongi, while prior convictions were not mentioned, the Judge referred to a previous episode of violence in which Ms Wihongi injured her partner.1039 Both Ms Rihia and Ms Wihongi received finite terms. If, in the future, analogous offending is caught by the three strikes law, the possibility of finite terms of imprisonment and the normal parole entitlements will be precluded.
11.92There is a strong case that the three strikes law could cause injustice to the category of offender we are concerned with in this review. It is only a matter of time before a case comes before the court where an offender is convicted of manslaughter or murder and would have received a relatively short finite sentence but for the three strikes law.1040

11.93There are further issues of potential relevance to victims of family violence who commit offences against their abusers that are worth noting. For example, there is no provision for a judge to decline to issue a first or second strike warning if, in the circumstances of the offence, categorising the offending as a strike would be manifestly unjust. Nor is there provision to depart from the mandatory maximum sentence for third strike offences except for murder or manslaughter. The three strikes law may bear heavily on victims of family violence who injure their abusers in analogous situations to those in our case sample but without causing death.

A problem in need of a solutionTop

11.94Under the three strikes law the legislature made a deliberate policy decision to impose mandatory life sentences for murder and manslaughter offenders who may otherwise have received finite sentences.1041 This review has identified one group of offenders for whom this is likely to be unjust, particularly if the prior qualifying offence (or offences) is (or are) similarly connected to or explained by a history of abuse. We have not considered the position of other offenders who may also be disproportionately disadvantaged by the three strikes law. Doing so would take us well outside the scope of this review.
11.95We are also mindful there are underlying questions around the application of the three strikes law to homicide offences, given that, in all four murder cases to date, the sentencing judges have reached the conclusion that a sentence of life imprisonment without parole would be manifestly unjust. As noted above, appeals in two of these cases are due to be heard shortly by the Court of Appeal.1042 In the face of this uncertainty around interpretation and the broader policy issues, we have not developed recommendations for amendments to the Sentencing Act. Instead, we suggest that the Ministry of Justice considers the issues raised by the three strikes legislation for homicide offenders in exceptional circumstances. In particular, we recommend that the Ministry of Justice consider how the mandatory life sentence could be dispensed with for victims of family violence who kill their abusers in circumstances where the three strikes regime would otherwise mandate a life sentence.


1028Section 86E(2) of the Sentencing Act 2002 provides that, if s 86E applies, which it will if the offender is convicted of murder as a second or third strike offence, the court must (a) sentence the offender to imprisonment for life for that murder; and (b) order that the offender serve that sentence of imprisonment for life without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so.
1029Sentencing Act 2002, s 86C.
1030See the discussion in Warren Brookbanks “Partial Defences to Murder in New Zealand” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Farnham, 2011) 271 at 289–290. The author notes that “[i]n terms of the minimum penalty that must be imposed upon a second or third strike conviction for either murder or manslaughter, both offences are now in an undifferentiated category” (at 289).
1031Sentencing Act 2002, s 86D.
1032These cases are R v Harrison [2014] NZHC 2705 (in which the offender’s first strike offence was an indecent assault); R v Turner [2015] NZHC 189 (in which the offender’s first strike offence was wounding with intent); R v Kingi [2016] NZHC 139 (in which the offender’s first strike offence was robbery); and R v Herkt [2016] NZHC 284 (in which the offender’s first strike offending was also robbery).
1033We understand that the Court of Appeal is scheduled to hear appeals by the Solicitor-General against the sentences imposed on Mr Harrison and Mr Turner, with an appeal by Mr Harrison’s co-offender to be heard at the same time, on 9 and 10 June 2016.
1034Sentences of life imprisonment with minimum non parole periods of 10 years were imposed in both R v Reti, above n 980, and R v Neale, above n 985, although both pre-date Wihongi.
1035R v Brown HC Napier CRI-2008-020-3130, 24 November 2009.
1036R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005.
1037At [6].
1038At [16].
1039R v Wihongi, above n 963, at [47].
1040We note that the first case to present problematic issues of mandatory sentencing for culpable homicide under the three strikes law may or may not involve a victim of family violence. It could be a murder conviction for one of the other categories of defendant for whom life imprisonment has been held to be manifestly unjust, or it could be a manslaughter case that would otherwise be treated with lenience. It might be a case that falls just outside the boundaries of our terms of reference – such as in Whiu, above n 981, the motor manslaughter case, where the offender was a victim of family violence but the homicide victim was a bystander. As the courts have repeatedly pointed out, manslaughter is an offence that captures a wide range of culpability and for which sentencing flexibility is, therefore, particularly important.
1041The mandatory life sentence for manslaughter was criticised at the time.  See Warren Brookbanks and Richard Ekins “The Case against the Three Strikes Sentencing Regime” [2010]  NZ L Rev 689 at 705. It was also subject to debate at the Committee stage. An amendment to exclude certain types of manslaughter was voted on and rejected: (18 May 2010) 663 NZPD 10901.
1042See above at n 1033.