New Zealand Case Law: Decisions & Judgments

Topic

Three strikes regime

Legal area

Court

25 Oct 2023

SULUSI v R [2023] NZCA 513

Citation

[2023] NZCA 513
Court

Court of Appeal

The Court held the mandatory no‑parole order under s 86C(4)(a) produced a 200% increase in minimum custody relative to ordinary sentencing and, given the offender's significant personal disadvantage and the specific facts of the offending, resulted in treatment disproportionately severe in breach of s 9 NZBORA; therefore the s 86C(4)(a) order was set aside while the custodial term of five years and three months was affirmed.
16 Oct 2023

MATARA v ATTORNEY-GENERAL [2023] NZHC 2888

Citation

[2023] NZHC 2888
Court

High Court

The plaintiff's claims are dismissed: declarations of inconsistency were not relevant because Fitzgerald and subsequent Court of Appeal reinterpretation corrected the sentence and the legislation has been repealed; s9 was not breached because the 18‑month parole delay did not cause unjustified detention and the claimant was ultimately denied parole; s22 was not breached for the same reasons; although the three strikes regime as initially applied risked breaching s25(a) by removing substantive judicial assessment, the breach was remedied by appeal in this case and no further relief is required…
5 Sept 2023

GEMMELL v R [2023] NZCA 420

Citation

[2023] NZCA 420
Court

Court of Appeal

The Court allowed the appeal, reduced the starting point and overall sentence and set aside the non-parole order because (a) the appellant's role was materially less than his co-offender warranting a lower starting point; (b) a discount for extended restrictive EM bail was warranted despite limited late breaches; and (c) applying the three strikes non-parole order to the appellant while his co-offender, who played the lead role, remained eligible for parole post-repeal produced a disproportionate result breaching s9 NZBORA; accordingly sentence of 4 years 2 months was quashed and replaced wit…
26 Jul 2023

LIAI v R [2023] NZCA 326

Citation

[2023] NZCA 326
Court

Court of Appeal

Recall was declined because, applying Fitzgerald and Matara, the non-parole orders did not produce a sentence so grossly disproportionate as to breach s 9: the calculated multiplier (approximately 1.67–2) and additional custody (about 4 years 9 months to 5 years 11 months) were insufficient given the seriousness of the offending, prior strike warning and limited mitigating factors, so no substantial injustice warranted recall.
16 May 2023

MCDONALD v R [2023] NZCA 172

Citation

[2023] NZCA 172
Court

Court of Appeal

The Judge lawfully exercised sentencing discretion: the seven per cent cultural allowance was within range given the offender's willing gravitation to gang life; there was no evidential basis for an addiction discount or for remorse; a five per cent rehabilitation discount was reasonably given; overall sentence was not manifestly excessive and the appeal must be dismissed.
15 Dec 2022

ALLEN v R [2022] NZCA 630

Citation

[2022] NZCA 630
Court

Court of Appeal

A mandatory three‑strikes sentence breaches s9 only if it is cruel or disproportionately severe compared with the sentence that would properly have been imposed but for the regime, taking into account correct starting point, appropriate discounts (avoiding double benefit for plea concessions), offender's personal circumstances and parole impact; applying those principles here the Court found the correct 'but for' end sentence was three years, the parole impact was not disproportionate, and therefore the seven-year mandatory sentence did not breach s9; fresh Parole Board material was admitted…
9 Dec 2022

SHEERS v R [2022] NZCA 618

Citation

[2022] NZCA 618
Court

Court of Appeal

The Court held that the 14-year maximum sentence imposed under s86D(2) was disproportionately severe and breached s9 NZBORA given the large absolute disparity with the sentence that would otherwise have been imposed and the appellant's FASD substantially reducing culpability; the 14-year sentence was quashed and a sentence of three years' imprisonment substituted.
7 Dec 2022

LOVE v R [2022] NZCA 614

Citation

[2022] NZCA 614
Court

Court of Appeal

The Court concluded the 10 year robbery sentence imposed under the three strikes regime was grossly disproportionate in breach of s 9 NZBORA given the appropriate ordinary sentence would have been 18 months; accordingly the 10 year sentence was quashed and substituted with 18 months' imprisonment and the concurrent lower sentences were left intact; an order under s 34 CP(MIP)A was not appropriate.
17 Nov 2022

DAVIS v POLICE [2022] NZHC 3019

Citation

[2022] NZHC 3019
Court

High Court

The District Court erred by failing to identify and order the mandatory non-release consequence under s 86C(4) for the injuring with intent offence; on appeal the sentence was quashed and substituted to reflect what the sentencing Judge would have imposed while preserving the actual period the offender would serve (6 months for injuring with intent with non-release order, and 9 months concurrent on remaining charges cumulative on the lead sentence), with appropriate discounts for guilty pleas and mental impairment and imposition of post-release conditions and a protection order.
27 Sept 2022

FITZGERALD v ATTORNEY-GENERAL OF NZ [2022] NZHC 2465

Citation

(2022) 13 HRNZ 704
Court

High Court

Crown prosecutors are state actors obliged under the Prosecution Guidelines and Criminal Procedure Act to consider s9 NZBORA when charging stage three offences; the Crown prosecutor failed to consider s9 here, that omission foreseeably led to a grossly disproportionate sentence and arbitrary detention from 5 March 2018 to 29 October 2021; declaratory theory and judicial sentencing do not absolve the Crown of liability; damages of NZD 450,000 awarded with interest and payment to Secretary for Justice under the PVCA.