July 26, 2020 1:00pm by David Farrar

Guest Post: Tarrant unlikely to get life without parole

A guest post by David Garrett:

When Brenton Tarrant comes up for sentencing in the High Court at Christchurch on 24 August, it will be a unique event in New Zealand criminal law in at least two ways: the murders for which he has pleaded guilty involve by far the greatest number of victims in our history; secondly, it is the first time such an offender faces the possibility of being sentenced to Life Without Parole (LWOP), in other words a true life sentence. I don’t believe that will be his sentence. Why do I think that?
Firstly it is important to realise that contrary to what those on the left love to say, we are not in fact a harshly punitive society, even when compared only with countries which are similar to us. For crime generally, the Sentencing Act 2002 sets up a sentencing regime which is in fact the exact opposite of harshly punitive.
As a starting point, the Act requires judges to impose “the least restrictive sentence possible” for any crime, violent or otherwise. It automatically cuts all sentences of two years or less in half, so when you read “ Mr X was sent to prison for two years” in actual fact the offender will serve half that time. The Act contains a bewildering number of discounts which must be applied, most notably a 25% discount for an early guilty plea. I regard that last point as crucial to what Tarrant’s sentence will be.
Let’s look at violent crime, particularly murder, and compare our sentencing regime with countries similar to ours. In all but the most exceptional cases, the sentence for murder In New Zealand is “life” – in quotes because hitherto it has almost never meant that an offender will actually stay in jail for life – with a minimum non parole period (NPP), the length of which depends on the circumstances of the crime.
Although many people do not understand it to be so, we in effect already have degrees of murder, albeit by sentence and not by charge, as in other jurisdictions.
For many years, it has been possible for judges to avoid a life sentence entirely if it would be “manifestly unjust” in all the circumstances – there’s that “manifestly unjust” phrase which was freshly defined for the purposes of the three strikes legislation, but let’s not go there just now. Section 102 (1) of the Sentencing Act has only been invoked a handful of times to spare a murderer a life sentence. Such cases have almost always involved the mercy killing – often at the request of the terminally ill victim – by one elderly spouse of another.
Next up the scale is what you may call “common or garden” murders, for which the sentence is “life” with a minimum NPP of ten years. The majority of murders will be in this category, i.e. attracting an NPP of perhaps 10-12 years. The next category is what might be called “aggravated murder”; in other words murder with one or more of the aggravating features – such as extreme cruelty or lengthy planning evidencing premeditation over a long period – listed in s.104 of the Act. It is that section that has given rise to very rare NPP’s of 20 years or more.
Lastly since 2010, a murderer may be liable for LWOP if no lesser sentence would be sufficient to meet the requirements of punishment set out in the Act – chiefly denunciation of particular nasty murders and deterrence. To my knowledge, LWOP has been sought on fewer than half a dozen occasions – usually in the case of a second murder or manslaughter, or where the victim has been a child or children. Thus far LWOP has never actually been imposed.
So how do our NPP’s for nasty murders compare with other similar countries? In short, our NPP’s are much shorter than average compared to those imposed in Australia, the UK, and Canada. Let’s start with the UK, the source of the common law, which lies at the foundation of our legal system. Since 1983, “whole of life tariff” sentences – in effect the same as LWOP – have been available to British judges. It is thought that 75 prisoners sentenced since 1983 remain alive and incarcerated in British prisons.
What about NPP’s for nasty murders? Here, UK judges are much harsher than ours, with NPP’s of 25 to 40 years being not uncommon. When I last did some quick research on this, it was not difficult to find an NPP of 35 years – the victim was a teenager groomed on social media and later murdered – and 25 years for a case where the victim’s body was dismembered after death and disposed of variously in the River Thames, and in rubbish skips.
As it happens, we have a very similar case here, that of Carmen Thomas in 2012. Thomas’s boyfriend was sentenced to life with a minimum NPP of just 13 years and eight months for bashing Ms. Thomas to death with a baseball bat, and then dismembering her body and disposing of it in different locations in the Waitakere’s. In other words, our courts imposed a minimum NPP of almost 10 fewer years than a closely comparable case in the UK.
What about Australia? Again, Australian judges are much more punitive than ours when it comes to sentences for murder, with NPP’s even for a single murder of up to 35 years being not uncommon. It is important to remember that the high point in New Zealand remains the 30 years imposed on William Bell for the murders of three people – and the attempted murder of a fourth – at the Panmure RSA in 2001. While it is relevant to note that LWOP was not available to the sentencing Judge in Bell’s case, there was nothing – except the Court of Appeal – stopping him imposing a similar sentence to the 35 plus years Bell would have received on the other side of the Tasman. (Bell successfully appealed the original sentence of 33 years which was reduced to 30 years on appeal)
Across the Tasman, sentences of LWOP are rare, but not unknown. Peter Dupas was convicted of three murders and suspected of other killings. He will die in jail, as will “The butcher of Wollongong” who was convicted of two murders, one of which also involved a dismembered victim as in Carmen Thomas’s case. It is estimated – records are apparently not kept of whole of life sentences – that approximately 15 Australian murderers are serving LWOP and thus will only leave prison in a box.
Which brings us back to Brenton Tarrant, who has pleaded guilty to 51 murders – by far a New Zealand record for the number of victims – and the attempted murder of 40 others. Across the Tasman or in the UK, his sentence would be a foregone conclusion – LWOP without a doubt. But will that be his sentence here? I very much doubt it. Let me explain why.
Judges in New Zealand are constrained by several things: firstly the requirement to impose the least restrictive sentence possible in all the circumstances. Secondly. New Zealand judges seem to think even the most heinous murderer is entitled to some hope of eventual release – LWOP obviously deprives the prisoner who receives that sentence of all hope. Thirdly, Tarrant has taken the highly unusual but in my view very calculated decision to plead guilty – albeit not at the first opportunity – thus sparing the surviving victims a very lengthy and no doubt harrowing trial.
That plea also means he is entitled – by virtue of that Sentencing Act again – to a discount of up to 25% of what would otherwise be the sentence. While it is of course mathematically impossible to calculate 25% of LWOP, for all the reasons I have set out above, I believe the sentencing judge will adopt the circuitous and convoluted reasoning which the Court of Appeal judges have in the three strikes cases in order to arrive at a sentence of something less than LWOP. So what will the sentence be? My guess is that while it will be considerably in excess of the 30 years Bell is serving, it will not be so long as to virtually ensure that 28 year old Tarrant has some hope of not dying in jail. Forty or forty-five years perhaps? We will know in one month’s time.