Sentencing a terrorist in New Zealand

BY DR BRENDA MIDSON, GENERAL EDITOR, NEW ZEALAND LAW JOURNAL

In a considered judgment spanning 44 pages, Justice Mander yesterday sentenced the Mosque terrorist to life imprisonment without the possibility of parole for murdering 51 people, concurrent sentences of 12 years on each of the charges of attempted murder and life imprisonment for committing a terrorist act ([2020] NZHC 2192).

In the judgment Justice Mander acknowledged by name each of the murder and attempted murder victims and described in some detail the impact the offending has had on both the murder victims’ families and survivors. He noted that the victims of the terrorism charge included those who were present or in
the immediate vicinity of the two mosques as well as the wider Muslim community.

The whole‐of‐life sentence is the first handed down in New Zealand. The possibility is provided for by s 103(2A) of the Sentencing Act 2002, enacted at the same time as the three‐strikes legislation in 2010. Section 103(2A) provides that if the court is satisfied that no minimum term of imprisonment would be sufficient to satisfy one or more of the following purposes, the court may order that the offender serve the sentence without parole:

1. (a) holding the offender accountable for the harm done to the victim and the community by the offending:
2. (b) denouncing the conduct in which the offender was involved:
3. (c) deterring the offender or other persons from committing the same or a similar offence:
4. (d) protecting the community from the offender.

Justice Mander thought it arguable that if the Court was satisfied that the statutory threshold was met, a whole‐of‐life sentence was inevitable, despite the constitutional implications. However, he proceeded on the basis that the Court had a residual discretion. Ultimately the question for the Judge, on that basis, was whether a whole‐of‐life sentence would be grossly disproportionate to the offending so as to engage the right in s 9 of the New Zealand Bill of Rights Act 1990 not to be subjected to disproportionately severe punishment. Justice Mander concluded that no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold the offender accountable for the harm done to the community or to denounce his crimes (at [179] and [182]):

The nature and circumstances of your offending, unprecedented in this country, are such that I consider the requirement that you serve your sentences of life imprisonment for murder without parole is a necessary sanction that provides a proportionate response.

The question that has arisen for me is how can a free and democratic society adequately respond to a crime of such exceptional seriousness — that takes the lives of innocent men, women and children on such a wholesale scale with such animus, and with such malice and callous indifference? Parliament has provided a sanction for such crimes in the form of a life sentence without parole that can only be imposed in the case of the very worst murders. Its use must be taken to have been intended only when the circumstances clearly warrant its imposition. The unavoidable rhetorical question in sentencing you today is, if not here, then when?

Justice Mander noted that the need for a whole‐of‐life sentence did not primarily arise from the requirements for deterrence or protection of the community, but from those of punishment and denunciation which, even if the offender dies in prison, will not be exhausted. The Judge saw this as one of the “exceedingly rare” (at [184]) cases in which no length of incarceration will atone for what the offender has done.

While it is entirely possible that questions may arise about the constitutionality of the sentence and the possibility of review, those questions are best left for another day. The symbolic effect of the sentence is huge. It is also important to recognise that this story does not end with the disposition of one offender. There is still so much work to be done on eliminating racism, hate, and persecution based on religion. As Justice Mander himself said (at [156]):

New Zealand rightly places great value on its diverse and culturally rich community. It recognises the contributions made by people of many racial and ethnic backgrounds and of varied faiths and cultures. Extremist beliefs and ideologies that seek to promote violence and hate are anathema to the values of acceptance, tolerance and mutual respect upon which our inclusive society is based and which this country strives to maintain. Where warped and malignant ideology manifests itself in such violence and causes such appalling harm, it is incumbent on the Court to respond in a way that decisively rejects such vicious malevolence.