Fergus Whyte

The facts of this case were unprecedented with the offender facing 51 charges of murder, 40 of attempted murder and one of terrorism. The offender pleaded guilty and represented himself at sentencing (standby counsel and an amicus were also appointed to assist the court). Considerable preparations were made by the court to accommodate the victims and allow them to give victim impact statements over a number of days.

The case facts make for very hard reading as do the thoughts of the victims and their families. The magnitude of the crime is clear from the judge’s factual summary (at [2] – [26]) and of the victim impact statements (at [27] – [107]). As Mander J noted (at [108] – [111]), the nature of the crimes as a form of terrorism targeting a particular community and houses of worship had an impact much wider than the already terrible impact on the individual victims.

Chris Miller

The New Zealand approach to sentencing arises from a combination of the Sentencing Act 2002 and decisions of the courts dealing with the methodology of sentencing, the role of guilty pleas and setting guidelines for various offences. Sentencing for murder in New Zealand almost always involves a sentence of life imprisonment except in the most exceptional of cases where it would be “manifestly unjust” (s 102). If life imprisonment is to be imposed, the focus then turns to what minimum period of imprisonment (MPI) should be imposed – that is to say, the time to be served before the offender is eligible to apply for parole.

For life imprisonment, the MPI cannot be less than 10 years and may rise from there depending on all the facts of the case with the court having the power (since amendments made in 2010) to impose a sentence of life imprisonment without parole (s 103). In particularly serious cases, the MPI will usually rise to at least 17 years (s 104). Where an offender has committed multiple offences, then the court will also need to consider whether sentences are to be served concurrently or cumulatively (ss 83 and 84). A guilty plea will usually attract a significant level of discount in the period of imprisonment (for cases with a finite sentence) or a lower MPI (in cases of life imprisonment).

In this case, Mander J considered that the only possible sentence was one of life imprisonment and so it fell to determine whether that should be served without the chance for parole or whether to fix an appropriate MPI. The High Court has never imposed a life without parole sentence in modern times and the previous highest MPI was one of 30 years (at [134]). The judge noted both the English approach to whole-life orders as well as ECtHR cases suggesting that such orders might be incompatible with international human rights instruments (at [138 – 139]).

Ultimately, the judge considered that the nature of the crimes, the interests of society and the principles of denunciation and deterrence were such as to justify a sentence of life imprisonment without parole (at [175] – [186]).

As Fergus Whyte notes, the decision illustrates the tensions that can exist between the underlying principles and purposes of sentencing. It is difficult to see how even an indefinite sentence of imprisonment could ever hope to fully recognise the enormity of the crimes committed and the harm done. Yet the sentencing of a still relatively young man (29 years old at time of sentencing) for such a severe crime raises the question of whether such a person should ever have the chance to demonstrate remorse and rehabilitation which are also within the principles and purposes the Act aims to achieve. Ultimately in this case, the judge considered that the purposes of denunciation and condemnation had to prevail. The judgment also provides some insight into New Zealand’s more articulated sentencing methodology which may be of importance if or when the Scottish Sentencing Council’s Sentencing Process Guideline (currently in development) is approved. It is also interesting to reflect on whether the MPI periods for serious murders noted in the judgment demonstrate lower overall sentences for murder in New Zealand than in Scotland.

As Chris Miller notes, a murder convict in Scotland faces a mandatory sentence of life imprisonment. When passing sentence, the judge must determine a punishment part, the minimum time a convicted murderer must spend in prison before their release may be considered by the Parole Board. The punishment part must be specified in years and months, notwithstanding that this could exceed the remainder of the convict’s natural life. This requirement of specifying a minimum period effectively excludes the possibility of imposing a sentence of life imprisonment without parole in Scotland.

The approach to determining the punishment part is arguably more of an art than a science in terms of sentencing methodology. While there exist principles which are considered when passing sentence by virtue of Guideline Judgments issued under Section 118 (7) of the Criminal Procedure (Scotland) Act 1995 and under Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the High Court of Justiciary Appeal Court emphasised in HM Advocate v Boyle [2009] HCJAC 89 that the application of these principles is inherently a matter of judicial discretion based on all the circumstances of a case.

However, the punishment part should amount to what is appropriate to satisfy requirements of retribution and deterrence, ignoring any confinement period necessary for public protection, and having regard to the seriousness of the offence, the convict’s previous convictions, and any guilty plea tendered.

After serving the punishment part, convicts remain in prison but can be released on license following consideration by the Parole Board and recalled to prison if this is breached. Accordingly, while life sentences are mandatory and competent for murder in Scotland, it does not necessarily result in convicts spending their whole life in prison unless the punishment part exceeds the remainder of their natural life or their release on license is refused.

While it may be tempting to suggest that cases involving mass-murder through acts of terrorism such as HM Advocate v al-Megrahi, 24 November 2003, unreported, could serve as useful comparators in assessing the likely punishment part Tarrant would have received had his crimes been committed in Scotland, it is difficult to say with any degree of certainty what the likely duration thereof would be considering the sentencing methodology for murder convicts in Scotland ultimately involves an exercise of principle-based discretion based on particular circumstances of cases. Furthermore, while the 1993 Act effectively precludes life imprisonment without parole in Scotland, the High Court of Justiciary Appeal Court in HM Advocate v Boyle also clarified that judicial discretion in respect of the minimum and maximum punishment part is effectively unfettered. As such the usefulness of such comparators is questionable.

Nevertheless, as life imprisonment without parole is incompetent in Scotland, the sentence imposed by the New Zealand High Court simply could not have been imposed had Tarrant committed his crimes in Scotland.

As both Chris Miller and Fergus Whyte note, sentencing decisions such as this, involving very difficult and upsetting facts, lead to fundamental questions both about the purposes and principles involved in sentencing and about the approach that courts take to reaching and reasoning about the end sentence they impose. In that sense both systems have something of interest to say and it is useful both to observe their similarities and to compare where they differ.