A guest post by David Garrett:
It is relatively well known that the “life” sentence imposed on the vast majority of our murderers almost never means what it says – but then it never did. Minimum non parole periods (NPP), a creature of the Sentencing Act 2002, make things a little clearer these days. What is even clearer, from even cursory research, is that the meaning of “life” has become very different in New Zealand as compared to Australia and Britain. But first a little history.
From 1840 onwards, English common law became the law of New Zealand. Capital punishment was first carried out in New Zealand in 1842 – on a Maori called Maketu who had murdered five Europeans. With one exception, a case of treason, all death sentences pronounced in New Zealand were for murder, the last being in 1957, when a Wanganui farmer called Bolton was hanged for the murder of his wife by poisoning.
During the first 60 years of 20th century, before effective abolition in 1961, the application of the death penalty was anything but consistent – which was also the case in England during the same period. In short, whether the sentence was carried out or commuted depended on your sex – only one woman, baby farmer Minnie Dean, was ever hanged – your place in society, and most importantly the government of the day.
Following the election of the first Labour government in 1935 all death sentences were commuted and replaced with “life”, and in 1941, the death penalty was abolished by statute and replaced with “Life with hard labour”. After the National Party returned to power in 1949 the death penalty was restored, but its actual application remained capricious, and largely dependent on who the Attorney General of the day was. Those whose sentences were commuted had them replaced with “life”, but between 1950 and 1961, there was no statutory definition of that sentence, and it became common practice to consider such prisoners for parole after seven years.
It is important to note that even during what some would call the “good old days” of the 1950’s and 60’s, a life sentence very rarely meant the prisoner would die in jail. Even a notorious rapist and murderer such as Stan Reid – whose file was marked “never to be released”– was in fact released several times, the last in 1985 when, six weeks after his release on compassionate grounds at the age of 83, he tried to rape a nun.
So, following effective abolition in 1961 (the death penalty remained on the books for treason and piracy until final abolition in 1989) the sentence for murder was “life”, without there apparently ever being a statutory definition of what that might mean, until the passing of the Sentencing Act 2002. That Act provided for a minimum non parole period for lifers of 10 years, and the following year the Act was amended to provide for a 17 year minimum NPP in cases where at least one of the “aggravating factors” set out in section 104 (1) of the Act was present: examples include murders involving a high level of depravity or cruelty; murders for payment; or where the victim is especially vulnerable, by reason of age or state of health.
In 2010 there was a further refinement added by the Sentencing and Parole Reform Act. This provision, largely overshadowed at the time by the “three strikes” (3S) provisions contained in that Act, provides for the imposition of life without parole (LWOP) where the murder is a stage two or three offence under the 3S regime, “unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so”. Miraculously, on each occasion where murders fitting the criteria for LWOP have come before either the High Court or the Court of Appeal, this so-called “manifestly unjust” proviso has been applied to avoid the imposition of LWOP.
Both in that regard, and with regard to minimum non parole periods for murders falling within s.104 (1) of the Sentencing Act, my research reveals that we are now very much out of step with the jurisdictions we most commonly compare ourselves to, particularly Australia and Britain. Both of those countries have “whole of life tariff” sentences as an option, which are for all practical purposes identical to LWOP as provided for in our Sentencing Act.
In Australia, minimum NPP’s of 25 or 35 years are, if not common, at least not rare, and are imposed for cases of murder which in New Zealand would only warrant a minimum NPP of 20 years or so. In cases such as R v. McLaughlin, an Australian court would, I have little doubt, either impose LWOP or a minimum NPP of 35 years or more.
Before killing 13 year old Jade Bayliss in Christchurch in November 2011 McLaughlin had served a sentence of 12 years for manslaughter in Australia. After his New Zealand murder conviction, the Crown sought a sentence of LWOP. The High Court refused, and instead imposed a life sentence with a minimum NPP of 23 years. There was no appeal by the Crown.
Across the Tasman, it would seem that the value of a human life – expressed in years of sentence imposed for taking one – has long been greater than over here. LWOP has been available in Australia since the abolition of the death penalty in that country in 1973, but its imposition is apparently fairly rare, with only 15 “lifers” – out of a total of more than 1000 – serving a whole of life sentence in 2016. As I have noted however, the Aussies readily impose much longer NPP’s for aggravated murder than do our courts.
Among the Australian lifers who have lengthy minimum NPP’s is one Adrian Bayley, serving life with a minimum NPP of 35 years for the rape and murder of a female journalist. To attract an NPP that long in New Zealand you pretty much have to kill multiple times; the high point remains William Bell’s 30 year NPP for the murder of three people at the Panmure RSA in 2001.
The British too are much more ready than our Judges to impose either very long NPP’s or whole of life sentences. British Judges have been able to sentence their worst murderers to LWOP since 1983, almost 30 years before our parliament saw fit to give New Zealand Judges that power. The whole-of-life sentence has apparently been imposed in the UK about 100 times since 1983.
So what conclusions can we draw? New Zealand legislators have lagged far behind their British and Australian counterparts in recognizing that some murderers belong in jail for the rest of their natural lives. Judges in both Britain and Australia are far more ready than ours to impose either sentences of LWOP or very lengthy NPP’s of 30 or even 40 years. But while our Judges have only had the power to impose LWOP for seven years, compared with thirty years in the UK, and forty years in Australia, they have that power now.
In my view our Judges need to stiffen their resolve and send foul repeat killers like Jeremy McLaughlin, and Pauesi Brown (who killed “good Samaritan” Austin Hemmings in 2010, after serving a sentence for manslaughter in Australia) to LWOP, or at least to very lengthy NPP’s that ensure that if such vermin are released at all, it will not be until they are very old men. Was Austin Hemmings’ life really only worth an NPP of 16 years? Not in my book. An NPP of at least twice that would have been appropriate, and that is certainly what Brown would have got if his second killing had been in Australia where he killed the first time.