[138]In this country, Parliament has provided that a life sentence without parole can be imposed in the case of the worst murders if the Court is satisfied that no minimum term would be sufficient to satisfy the prescribed purposes of sentencing an offender for such a crime.[1] When that statutory criteria is met, the Court has a discretion to impose a whole-of-life sentence. However, the Court must not impose a punishment that is disproportionately severe — that is a sentence that is “grossly disproportionate” to the circumstances of the offending and the offender.[2]
[139]There is European jurisprudence that indicates the imposition of a whole-of-life sentence in the absence of any effective review mechanism is incompatible with international human rights instruments.[3] The limited grounds afforded under our legislation for release on compassionate grounds may not be considered as providing
- ↑ Sentencing Act, s 103(2A).
- ↑ New Zealand Bill of Rights Act 1990, s 9; R v Harrison [2016] NZCA 381, [2016] NZLR 602 at [78]–[83]; Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [176] per Blanchard J, [91] per Elias CJ, [286] per Tipping J and [340] per McGrath J; and Vaihu v Attorney-General [2007] NZCA 574, (2007) 8 HRNZ 403 at [36]. In Fitzgerald v R [2020] NZCA 292, the Court of Appeal summarised the Supreme Court’s discussion in Taunoa of the “high threshold” in s 9 of the Bill of Rights Act, as follows:
- [42]... the judgments delivered by the Supreme Court referred to punishment or treatment that is “grossly disproportionate to the circumstances”, that goes “well beyond punishment or treatment which is simply excessive, even if manifestly so”, that is “so excessive as to outrage standards of decency”, that would “shock the national conscience”, or the severity of which is “such as to cause shock and thus abhorrence to properly informed citizens”. This assessment must be made by reference to the values and standards of New Zealanders.
- [43]The threshold established by Taunoa is a high one. It is not enough that the punishment prescribed for Mr Fitzgerald is, as we concluded above, manifestly unjust or manifestly excessive. It must be grossly disproportionate, and such as to cause shock to properly informed citizens...
- (Footnotes omitted)
- ↑ Vinter v United Kingdom Grand Chamber, ECHR 66069/09, 9 July 2013; and European Convention on Human Rights, art 3 (prohibition on, relevantly, inhuman or degrading treatment or punishment).
Member of Parliament who was stabbed and shot on her front doorstep by an offender to advance his ideology of “violent white supremacism and exclusive nationalism most associated with Nazism in its modern forms” (Mair, above, at 2). In Adebolajo two offenders killed a British soldier in public near his barracks in an act of terrorism. Both espoused extremist religious views. In R v Adebolajo [2014] EWCA Crim 2779 the English Court of Appeal refused the offender’s fresh application for leave to appeal his whole life order, rejecting his contention that his crimes were motivated by simple religious hatred or should be considered the equivalent of an ordinary murder of a police officer. It found the murder was committed for political and ideological purposes and said “we can see no conceivable basis upon which it can be argued that a whole life order was not the just penalty for such a horrific and barbaric crime” (at [45]). In R v Abedi (Crown Court, 20 August 2020) Jeremy Baker J sentenced an offender who played an “integral part” in the planning and preparation of his brother’s suicide bombing of the Manchester Arena in 2017. His Honour sentenced the offender to life imprisonment but found himself unable to impose a whole of life sentence because the offender was under 21 at the time (Criminal Justice Act 269(4)). His Honour said (at [29]) that he had no doubt that but for the statutory bar, a whole life sentence would have been the only just sentence. He found minimum terms of 35 and 40 years on two of the counts were required.
