There would be few who would disagree with the approach to sentencing taken by Justice Cameron Mander in the tragic Lauren Dickason case.

Justice Mander effectively bypassed the jury’s decision that Dickason was guilty of the murder of her three infant daughters, with his comment that ““I am satisfied that your actions were the product of your mental disorder. I consider your severe depression dominated your mental process. Not just contributed to your actions but drove them.” In sentencing Dickason to three concurrent sentences of 18 years, with no minimum parole period, the Judge was rejecting the argument that she was guilty of cold-blooded murder. In practical terms, that means Dickason will be eligible for parole after six years.

Moreover, by ruling that she be detained in a specialist mental health institution until she is fit to be transferred to a prison, the Judge has ensured that Dickason will at worst serve a minimal time in prison. As it is, when the time she has been in detention since her arrest is considered, Dickason could be released by 2028, assuming her mental health situation has improved sufficiently by then. At that point, she will almost certainly be deported back to South Africa, to the care of family and friends.

Justice Mander is to be applauded for the way in which he has navigated often-inflexible sentencing rules to reach a solution that will be seen as the most reasonable in the circumstances. In that, he has set a standard for other Judges to follow in similarly harrowing cases. His judgement also raises questions about the adequacy of our law in such matters, and whether there needs to be greater capacity for juries to show more flexibility than the stark guilty/not guilty decision this case required of them.

But there is a delicious coincidental irony that on the same day Justice Mander announced his momentous decision, the government introduced renewed “three strikes” legislation to Parliament. That legislation, a United States solution to repeated offending that gained popular support during the 1990s, has long been championed by the ACT Party. Similar legislation was introduced here in 2010 and passed with only National’s and ACT’s support, with Labour, the Greens, the Māori Party and UnitedFuture opposed. It was repealed by Labour in 2022, against the opposition of National, ACT, and New Zealand First.

Introducing the new three strikes legislation this week, Associate Justice Minister, ACT’s Nicole McKee, said “Three Strikes law will help keep New Zealanders safer while sending a strong message to those who keep committing these serious crimes – repeat offending is not acceptable, and they will face increasingly serious consequences.” Under the law, which will have limited discretion for Judges to “avoid manifestly unjust outcomes”, offenders will be warned of the consequences of re-offending at their first strike and will be denied parole at their second strike. For a third strike, offenders will have to serve the maximum penalty without parole.

However, critics point out that, in the United States, three strikes laws have not proven a deterrent to violent crime, because violent crime is often not pre-meditated, but a spur of the moment reaction to a particular situation. In New Zealand violent crime has been sharply increasing since 2010, even during the time when the three strikes law was in place. 

Studies on the impact of three strikes laws in the United States have produced mixed results. At best, they appear to show such laws have had a minimal positive impact on crime levels. But some studies have produced more critical results, that offenders may be pushed to commit more serious crimes to avoid the escalating effect of three strikes sanctions. A Missouri study in 2015 concluded that three-strikes laws were associated with a 33% increase in the risk of fatal assaults on Police officers. Other studies have drawn attention to what they consider to be the uneven emphasis on violent crime, over, for example, white collar crime.

What is clear is, that despite the protections the government promises will be in New Zealand’s new three strikes laws, the overall intention is to provide more certainty in the sentencing process, by limiting the exercise of judicial discretion. The government has separately announced plans for legislation later this year to limit Judges’ discretion to impose lesser sentences. While these moves may satisfy the public lust for a strong sentencing response to aggravated violent crime, which is understandable in the current circumstances, they will come at the cost of the type of wise flexibility Justice Mander exercised in the Dickason case. Not all Judges will possess or be willing to adopt the same flexibility Justice Mander did.

Three strikes laws are designed to overcome what are often regarded as “weak” sentences from “soft” Judges to satisfy the public’s concerns that the law is not being properly applied. The risk is that this will induce a new general sense of judicial conservatism whereby Judges become more reluctant to adopt a compassionate approach to sentencing for fear of running foul of the three strikes regime.

The net effect of this, and the proposed reduction on Judges’ sentencing discretion, will be many more people clogging up our already overcrowded prisons. The Corrections Department’s figures show that it currently costs about $113,000 annually to keep a sentenced prisoner incarcerated, and the cost of the new prison being built at Waikeria has already surpassed $930 million. On that basis, the economic feasibility of building more prisons to house three strikes prisoners looks deeply flawed, especially in a time of severe fiscal restraint.

Mindful of Sir Bill English’s 2011 comment that prisons are “a moral and fiscal failure”, there are so many better priorities the government ought to be focusing on.  Improved mental health facilities to identify and help severely at-risk people like Lauren Dickason, before they commit horrific acts of (family) violence would be a good place to start.