An appeal against manifestly unjust

Stuff reports:

Two murderers face becoming New Zealand’s first criminals jailed for the rest of their lives after an historic appeal of the three strikes law.

The lawyers of Shane Pierre Harrison and Justin Vance Turner had successfully argued such a tough sentence was unfair in the men’s cases, even though criminals with first strike convictions who later committed murders could be jailed for life without parole.

However, the Crown has appealed their sentences, claiming the High Court judges were wrong to fail to jail the two killers for life without parole. 

So the High Court decided that life without parole would be manifestly unjust. This shows that the law doesn’t totally eliminate judicial discretion – which was the intent. But it is good to have the Court of Appeal decide if the High Court got it right.

Harrison jointly murdered Alonsio (Sio) Matalasi during a gang confrontation in Petone, Lower Hutt, in August 2013. Turnerwho bashed and stomped to death a fellow homeless man, Maqbool Hussain, in Auckland in March 2014.

Harrison’s first strike offence was for pinching a policewoman’s bottom and brushing his hand across her groin and thighs in 2011.

At his October 2014 sentencing for murder, Justice Jill Malyon said Harrison’s indecent assault conviction was “relatively minor” and while it could trigger life imprisonment without parole, that was “an entirely disproportionate response”.

“It would be manifestly unjust and is the kind of unfair case that Parliament has recognised can arise in providing the judge with the discretion,” she said in the High Court in Wellington.

She sentenced him to life in jail with a 13-year minimum non-parole period.

But Harrison has killed before. He also killed in 1989. That was of course before three strikes, so can’t be used for a strike. But he qualified for LWOP on the basis of the two convictions under three strikes, and I would have thought his earlier conviction could be a factor in whether LWOP is manifestly unjust.

The other case is of Justin Turner. He bashed and stamped to death a homeless man in 2014 and his first strike was:

Turner’s first strike conviction was for wounding with intent after hitting a female acquaintance in the head several times in 2011, causing traumatic brain injuries. She required life support when admitted to Auckland Hospital and needed ongoing, serious rehabilitative treatment. 

Nasty.

When sentencing Turner in February, Justice Mark Woolford said the 29-year-old could spend as long as 59 years behind bars before he died, which Turner’s lawyer argued was “disproportionately severe”.

I’m not sure it is.

The Harrison case is more arguable as his first strike was relatively minor. But Turner almost killed with his first strike. He did kill with his second strike. The three strikes law is about protection of the community and certainty of outcome to deter crime.

It will be very interesting to see how the Court of Appeal rules.