Guest Post: Judges simply refuse to impose LWOP

A guest post by David Garrett:

Since  the Sentencing and Parole Reform Act came into force  in June 2010, the sentence of life in prison without possibility of parole (LWOP) for murder has been a sentence available to New Zealand judges. On 15 occasions since June 2010, LWOP was either applied for by the Crown, or was the mandated sentence under  the three strikes regime. In none of those 15 cases was LWOP actually  imposed. In short, the judges have simply refused to impose a sentence which  was intended by parliament in the majority of those cases to be virtually mandatory.
 
There are two quite separate and discrete routes to an LWOP sentence: 1) under the  “three strikes” regime for second and third strike murderers; or alternatively, 2) by the application of s.103(2A) of the Sentencing Act which, quite separate from the three strikes (3s) regime, allows a judge to sentence an offender to LWOP for murder regardless of his prior history  if no lesser non parole period would satisfy the purposes set out elsewhere in the Sentencing Act.
 
There have been three cases where LWOP could reasonably have been imposed pursuant to s.103(2A), and 12 cases where murder was a second or third strike offence. In the first category –  the three cases under s.103(2A) – LWOP was an entirely discretionary sentence. In the twelve  3s cases the story is quite different – the 3s regime made LWOP mandatory in each case unless what has become the “manifestly unjust” judicial escape clause – it was never intended to be such – was invoked. Miraculously, on all 12 occasions where the 3s regime mandated a sentence of LWOP, various judges have found it would be “manifestly unjust” to actually apply the law as written.
 
The s.103(2A) cases
Let’s look first at the discretionary sentence cases where the Crown has sought a sentence of LWOP pursuant to s.103(2A) of the Sentencing Act. The first such case was Jeremy McLaughlin, who killed a 13 year old girl, the daughter of his previous partner, during a  burglary of her home. McLaughlin had been  found guilty of the manslaughter of a 14 year old boy in Australia in 1995, and had served 12 years in prison for that crime before being deported back here.
 
In November 2011, McLaughlin broke into his previous partner’s Christchurch home  to burgle it, and there encountered Jade Bayliss, aged 13. McLaughlin strangled and killed  Jade before leaving with various household items from the house, and then burning it down. Bizarrely, he admitted burglary and arson, but denied the killing.
 
In the High Court, Justice Panckhurst said it was “simply fatuous” to claim that McLaughlin had burgled and then burnt down the house, but that he had not also killed Jade. His Honour said that McLaughlin was “on the brink” of being imprisoned for the rest of his natural life – but then he declined to do so, sentencing him instead to life with a minimum non parole period (NPP) of 23 years.  If he gets out on his first parole application, he will still be under 60 years of age – well able to kill for a third time.
 
So, a person who has killed not one but two young persons will almost certainly be released from prison with 15 or 20 years of life still to enjoy. I suspect many people will think that is “manifestly unjust”. But McLaughlin was convicted of a manslaughter, and then a murder. Perhaps two murders would be enough to trigger the LWOP sentence? Well, apparently not.
 
Paul Wilson aka Paul Pounamu Tainui was jailed in 1995 for the murder of his 21 year old girlfriend on the West Coast – having earlier tried to shoot her in front of witnesses  with a shotgun which misfired. While in prison, Wilson met David Bain, and later became the groomsman at Bain’s wedding. He also underwent 300 one on one sessions with a psychologist.
He was granted parole in 2011 on his fifth application. It is clear from reading the Parole Board’s decisions declining his applications – the last in June 2010 – that they were wary of him. Although three psychologists assessed Wilson’s risk of offending as low – but much greater if he was in “close or intimate relationships” – the Board of its own motion had Wilson assessed according to an assessment tool known as the psychopathy checklist. The “expert” who prepared that report thought Wilson could “effectively manage his low actuarial risk of reoffending….”, and Wilson was duly  released in January 2011.
 
For a time all went well. The Board monitored Wilson’s progress and was happy with it. Several years after his  release Wilson met a young “spiritual teacher”  called Nicole Tuxford, who both socialised with him, and tried to help him.  Wilson apparently became infatuated with Tuxford, and became enraged when he learned she had a boyfriend. He lay in wait for her in her home, and when she returned, he raped her and cut her throat multiple times after tying her up. So, two murders, both of young women with whom he was infatuated. A clear case for LWOP you would think? Sadly No.
 
At trial, Justice Mander rejected the Crown’s application for LWOP under s.103(2A), and instead imposed a life sentence with a minimum NPP of 28 years, meaning Wilson would be over 80 when he became eligible to apply for parole. He was also sentenced to Preventive Detention for the admitted rape of  his victim, but that additional sentence is effectively meaningless. Is allowing him even the possibility of another release on  parole justice? Not in my book. In 28 years memories will have faded, and God knows who we will have on the Parole Board; it might be headed by a retired Green MP.
 
The three strike cases
As noted above, there have been 12 cases of murder as either a second or third strike offence. As written, the three strikes sections of the Sentencing Act mean that those 12 ought to have all been sentenced to LWOP – being the maximum possible sentence – unless in any case such a sentence was “manifestly unjust”. Absurdly, in all 12 cases, the judges have defied the clear will of Parliament and found that NONE of those murderers ought to face the full force of the law.
 
The Judges in the High Court at least have some excuse for their failures – they are bound by the precedents set in the Court of Appeal, most notably  in the cases of Justin Vance Turner, and Shane Pierre Harrison. Let’s look at those cases in turn.
 
Turner was the first second strike murderer. He viciously beat a girlfriend in 2011 causing her serious brain injuries. He was jailed for what many would think was an absurdly light term of three years and four months for that, and given his first strike warning.  In February 2015, while on parole, he was convicted of murdering a homeless man. The circumstances of the murder were horrific, with Turner jumping on the much older man’s head until it bounced off the pavement.  Turner was assessed as having an “alarmingly high” risk of reoffending. LWOP then, as required by the 3s law? No. The sentencing judge instead thought a ridiculously light 15 year minimum NPP was sufficient. The Crown appealed that sentence to the Court of Appeal.
 
In the Court of Appeal, the Judges embarked on what has become the familiar legal contortions to find that the 3s regime doesn’t actually mean what it clearly says. Despite the phrase “manifestly unjust” having already been what lawyers call “judicially defined” for the purposes of  a different section of the Sentencing Act, the Court of Appeal decreed that that phrase has a completely different meaning when applied to 3s cases. Worse still, they have inserted an extra limb to the test, claiming that parliament “must have intended” that such a sentence would never be grossly disproportionate when compared with similar cases.
 
In coming to this conclusion, they are being what is known as “wilfully blind”, by citing my third reading speech on the Bill, but completely ignoring the several instances where the question of disproportionality was discussed during the Committee of the Whole stage.
 
In short, I explained to the House on numerous occasions that disproportionality in sentencing under 3s was the whole point  of the regime.  If a person kept offending violently it was intended that their sentences get exponentially worse.
After concocting a test which is directly contrary to the intention of  parliament, the Court of Appeal rejected the Crown’s application for LWOP for Turner on the grounds that because of his age, he would likely spend up to 50 years in jail, and parliament “cannot possibly have intended that”. That is exactly what parliament intended in 2010, for a vicious thug like Turner, with 111 previous convictions – yes, you read that right, one hundred and eleven previous convictions – many of them for serious violence. The Court did graciously impose an extra two years on Turner’s NPP. He will still be a relatively young man when he is released, as he almost certainly will be, if not on his first application.
 
The other Crown appeal was in the case of Shane Pierre Harrison, a charming looking gang member with a face covered in tatts and half his teeth missing. Harrison was 46 when convicted as a second strike, of being a party to the murder of a rival gang member. Harrison has been a gang member since he was a  teenager. He also has a conviction for manslaughter, albeit long before the 3s regime was introduced. At 46, Harrison is 16 years older than Turner, and given his lifestyle, he is unlikely to make old bones, and therefore LWOP would probably mean a much shorter time in prison for him. But no, the Court found that in his case also, LWOP would be “manifestly unjust”, and in about 10 years time (he was sentenced three years ago to a minimum NPP of 13 years) he also will be up for parole.
 
The first case where murder was a third strike was that of Dylyn Davis, who severely  beat his young girlfriend and left her to die while he went around trying to establish an alibi. His two previous strike offences were aggravated robbery and injuring with intent to injure. He killed his victim a mere five months after being released from prison for his second strike offence.
 
Under the 3s law, Justice Davison was required, if LWOP was manifestly unjust, to sentence Davis to a minimum NPP of 20 years, unless that also was manifestly unjust. As it happened, the judge kicked for touch, and largely on the grounds of Davis’s age, refused  to impose LWOP – which might have led to a term of 60 years – but imposed a minimum NPP of 20 years, which was confirmed on appeal.
 
I believe that what has occurred in most if not all of the 15 cases where LWOP was either available or supposedly mandatory  is nothing less than outrageous judicial activism, with our judges not simply ignoring the clear will of parliament, but going directly against it.
 
The next test of course will be Tarrant who, when inevitably found guilty – unless he is either found unfit to plead or succeeds in running an insanity defence – will be eligible for LWOP pursuant to s.103(2A). Will 50 murders be enough to cause the judges to do their clear duty? Who knows; Tarrant is about the same age as Davis, and might spend  60 years or more  in prison if LWOP is imposed on him. Time will tell. Since  the Sentencing and Parole Reform Act came into force  in June 2010, the sentence of life in prison without possibility of parole (LWOP) for murder has been a sentence available to New Zealand judges. On 15 occasions since June 2010, LWOP was either applied for by the Crown, or was the mandated sentence under  the three strikes regime. In none of those 15 cases was LWOP actually  imposed. In short, the judges have simply refused to impose a sentence which  was intended by parliament in the majority of those cases to be virtually mandatory.
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