First ‘third strike’ maximum sentence

A man has been sentenced to a maximum term (for the charge) of seven years in prison with no parole, for stabbing someone in the leg. If it hadn’t been a third strike offence it would have qualified for a prison sentence in the 2-3 year range.

It is the first time the ‘manifestly unjust’ out clause has not been invoked.

Two previous third strike sentences were not applied because the third convictions were both low end indecent assaults that would not on their own have justified prison sentences (indecent assaults can range in severity a lot).

This explanation of the sentencing gives an idea of the procedure judges go through to arrive at an appropriate sentence. This also shows how the judge has considered the intent of Parliament for three strikes.

Summary of offending

[3] On 4 January 2018, you were drinking alcohol with several associates at the Marton Hotel, where you were living while on bail. There is evidence you had been drinking for seven to eight hours. An argument broke out between you and the victim,
who believed you had stolen his phone. The victim was sitting next to you on a couch. You produced a knife with a retractable blade and stabbed the victim in the leg about 20 cm below his knee. This happened without any warning and produced a wound
approximately 2 cm in length, and 0.5 cm deep, into the victim’s calf muscle, which required medical attention including three sutures.

You were described by police who arrived at the scene as being belligerent, aggressive and intoxicated.

Appropriate sentence but for s 86D

[9] I begin by addressing the sentence I would have given you, if this were not your third-strike offence.

[10] The Court of Appeal’s decision in R v Nuku is the leading sentencing guideline judgment for offences such as wounding with intent to injure. Your offending falls on the cusp of sentencing bands two and three, which means that a starting point between two and three years’ imprisonment is warranted for your offending.

[13] Mr Mallalieu, for the Crown, and Mr Crowley, your counsel, agree that a starting point of around two and a half years’ imprisonment would have been warranted. I am also satisfied that a starting point of two years and six months’ imprisonment would have been appropriate.

[14] You have several previous convictions for violent offending. Most seriously, you were given a sentence of home detention for another instance of wounding with intent to injure in 2012. However, your violent offending has continued, and earlier this year you were sentenced to imprisonment for assault. Mr Crowley accepts that an uplift would have been necessary to reflect your previous convictions. You were also on bail at the time of your offending. I would have considered an uplift of six months appropriate in the circumstances.

[19] As you pleaded guilty, I would have been willing to give you the full 25 per cent discount for entering an early guilty plea.

[20] This would have resulted in an end sentence of two years and three months’ imprisonment. This means that you would have been sentenced to a term of imprisonment, regardless of the three strikes regime.

[21] I will now consider whether it would be manifestly unjust to order that you serve your sentence without parole. I am not convinced that it would be grossly disproportionate to make such an order in your circumstances. Your offending sits in the mid-range of wounding with intent to injure. This is not a case where your offending is insignificant compared to a maximum sentence that was designed to cover a wide variety of behaviour, as was the case in R v Campbell and R v Fitzgerald, both of which concerned indecent assaults that otherwise would not have attracted sentences of imprisonment at all. As I have already noted, absent the three strikes regime, you would have been sentenced to a term of imprisonment in excess of two years.

[22] I acknowledge that your sentence will be much harsher than I would otherwise have imposed, however, that will invariably be the case for a third-strike offence. Parliament deliberately designed a harsh response to offenders who persistently commit serious offences despite clear warnings. I have not been presented with any evidence that would suggest you were incapable of understanding the two warning previous given to you in 2012 and 2014.

[23] The Court of Appeal has emphasised that the manifestly unjust exception will only be engaged in clear and convincing cases.
While such cases might not be rare, as many offences encompass a wide variety of behaviour, it would be contrary to Parliament’s intent for the courts to routinely invoke the exception as a matter of course. Some regard must be given to the fact that Parliament anticipated that some degree of disproportion would inevitably be involved in a regime such as this.

[25] I have reached the conclusion that this is not a clear and convincing case to depart from the full effects of the three strikes regime. This conclusion is based in part because I consider that you are at a high-risk of reoffending and there is a need for
community protection. Your previous three strike offences, and the pattern of behaviour they demonstrate, are very telling.

(1) Your first-strike offence was for the same charge as the present offence. You jointly assaulted a victim, along with your father, by repeatedly punching his head and body with closed fists. The victim was also kicked in the face. You also used pieces of wood to strike the victim. The victim suffered a fractured nose, lacerations to his forehead, scalp and one of his fingers, and a fracture to that finger. The victim experienced on-going problems relating to his nose and finger. The
pre-sentence reports for this offence described you as having little insight into the implications of your offending. The sentencing Judge described them as disturbing to read.

(2) Your second-strike offence, while for a different kind of offending, was more serious than your first-strike offence. You followed a 17-year-old girl as she was walking home. She either tripped or was pushed to the ground. You indecently assaulted her and forcibly pulled down her underwear while telling her to calm down. You then forcefully penetrated her genitalia with your finger. She screamed and yelled for help, begging you not to hurt her further. You also threw her cell phone away during the attack. You attempted to remove your pants with one hand while holding her with the other. At this stage, the victim managed to bite your forearm and fortunately, she managed to escape. Your offending had major negative emotional impacts on the victim. The pre-sentence report for this offence described you as reluctant to even discuss the incident. It also concluded there was no evidence of remorse and that you displayed no emotion.

[26] While your previous three strike offences were for different charges, they both share a common feature with your present offending; that is the fact that in every case you instigated the offending without warning. It is equally disturbing that the presentence reports for both of your previous “strike” offences record your lack of remorse and insight into your actions. Thankfully, you now appear to be beginning to understand that you have a problem. Nevertheless, your continued resort to violence while in custody demonstrates that you have not yet fully come to grips with your violent tendencies.

[27] All three of these offences occurred within a period of approximately six and half years. You continued to offend on each occasion shortly after the end of your previous sentence. You did this even after you were warned about the consequences.

[28] In those circumstances, it is fair to say you are at a high-risk of re-offending, which is confirmed by the assessment in the pre-sentence report. There is a clear need to protect the community from you; one of the central purposes of the three strikes regime. For that reason, I do not consider that it would be manifestly unjust to order that you serve your sentence without parole.

[30] I am sentencing you to seven years’ imprisonment.

[31] That sentence will be served without parole.

R v Waitokia 
21 August 2018
[2018] NZHC 2146