Three Strikes 2.0 was meant to put away the worst criminals. So far it has barely been used

The strike rate for the new law after its first five months, extrapolated over a year, is only 24.

A slower strike rate under version 2.0 is not surprising because the process takes longer before a strike is imposed, compared with version 1.0.

The original regime also required a conviction for one of only 40 qualifying offences to register a strike.

The new regime has 41 qualifying offences (strangulation has been added), as well as a higher threshold: a conviction and a sentence of at least 12 months are needed for a first strike.

This was included to avoid the many strikes under version 1.0 for minor offences, such as grabbing someone’s bum, which would otherwise not have landed someone in jail for long, or at all.

Despite the higher threshold, officials expected a similar strike rate under 2.0 as for 1.0: about 12,000 first strikes in the first 10 years, or an average of about 1200 a year.

So why is version 2.0 being used so minimally?

Nothing unusual is happening, says Associate Justice Minister Nicole McKee.

The rate of strikes being handed down under the first version of the law started as a trickle, McKee said, though she didn’t quantify this with data.

Strikes under 1.0 were recorded after a conviction, but under 2.0 it happens at sentencing, slowing the trickle even further compared with the original law.

It can take several weeks or months for a sentencing hearing following a conviction because a judge often seeks more information in, for example, pre-sentencing reports.

Sentencing hearings are also routinely delayed if all the information is not ready.

“That means the pipeline takes time to build,” McKee said in a statement.

The new law also has sentencing thresholds for each tier of strikes that didn’t exist under version 1.0.

“Someone must commit a qualifying offence, be charged, go through the courts, be convicted and then receive a sentence of more than 12 months [for a first strike],” she said.

“That process often takes many months and some people who have committed crimes in this time will not yet have progressed through the system to have the strike imposed.”

The time it takes for a case to go through the court system was also longer in 2025 than it was a decade ago, despite the Government’s efforts to improve court timeliness.

McKee, who is also the Minister for Courts, expected the strike rate to increase – and it is already happening.

Data provided to her office showed nine strikes had been imposed between mid-November and December 11, bringing the total in the law’s first six months to 19.

This almost doubles the number of first strikes in the sixth month, compared with the first five months.

“As more cases reach sentencing, the numbers will continue to rise. Three Strikes 2.0 is working as intended,” McKee said.

Labour Party justice spokesman Duncan Webb speculated whether judges were so opposed to the law that they might be reluctant to impose a first strike.

“It appears there is a real risk that judges hate this law so much that they’re avoiding sentencing in a way which triggers it.”

Judges could achieve this by sentencing someone who has committed a qualifying crime to a term of less than 12 months.

Whether there is any data on this is an open question.

But there was a suggestion of judicial intervention with the original law.

The Court of Appeal found the “manifestly unjust” clause could be used in some circumstances to allow for parole at strike two, even though there was no specific wording in the law enabling this.

Three Strikes aims to punish the worst recidivist offenders with longer sentences and fewer chances for parole, although there is no evidence of any safety benefit.

The original Three Strikes was implemented in 2010, and repealed by the previous Labour Government in 2022.

It required a warning for a conviction for any of the 40 qualifying offences, a final warning and a sentence with no parole for a second-strike conviction, and the maximum sentence with no parole for a third-strike conviction.

One of the criticisms was that it removed judicial discretion (though a “manifestly unjust” clause could be applied, and frequently was). This meant offenders were sent to jail for a long time for relatively minor offences.

To avoid this, the Government initially announced a 24-month sentencing threshold for each strike offence under version 2.0, though this was shorter than what officials had recommended.

Cabinet later decided this was too lenient and halved the first-strike sentencing threshold to 12 months, while keeping it at 24 months for strikes two and three.

McKee explained the change as a response to a “large number of emails” sent to her office, eventually revealed as only 10 emails.

The new law is also retrospective. The strikes under 1.0 with long-enough sentences have been “reactivated” for version 2.0.

Justice figures released to the Herald show how many have been reactivated:

Officials estimated the new law would put a further 130-210 offenders behind bars in its first 10 years.

There is inherent uncertainty in this estimate.

If reality fell behind the estimate, it could be a blessing in disguise: Corrections is already dealing with a shrinking per-prisoner budget, while the Government continues to expand prison capacity in anticipation that the record number of prisoners will continue to rise.

The Government is aiming to walk a fine line with version 2.0, putting the most dangerous people behind bars for longer, but not so long that it opens up the possibility of compensation payments.

The Fitzgerald case was seen as justifying a higher strike threshold under the new law.

Daniel Clinton Fitzgerald was rewarded $450,000 in compensation after serving part of a strike-three sentence, which breached the Bill Of Rights Act (Bora) protection against disproportionately severe punishment.

Fitzgerald suffered from schizophrenia and had been in and out of mental health facilities at least 13 times. When sentenced for his third strike, in May 2018, the judge noted his crime of indecent assault – kissing a woman and pushing another woman in the street – may not typically have warranted a prison sentence.

He was given the mandatory seven-year jail sentence, but the judge applied the “manifestly unjust” clause in allowing the possibility of parole.

Fitzgerald’s first and second-strike offences were also indecent assaults: in 2012, he had knocked a victim to the ground and buried his face in her buttocks, and in 2015, he had slapped the buttocks of three women as they walked past.

His third-strike appeal landed in the Supreme Court in 2021, and it said the law was meant to apply to only those who repeatedly committed crimes of a very serious nature. It wasn’t meant to override the Bora protection against disproportionately severe treatment.

The Fitzgerald sentence went “well beyond excessive punishment and would shock the conscience of properly informed New Zealanders”, the judges’ majority ruling said.

The case was returned to the High Court for sentencing and it imposed six months’ jail.

Fitzgerald’s compensation was due to having already served five years of his original seven-year sentence.

Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.